Plaintiff Aristadata, Inc. moves for an order pursuant to CPLR §3126 dismissing the defendants' counterclaims or, in the alternative, for an order of preclusion pursuant to CPLR §3126 or, in the alternative, for an adverse inference jury instruction. The defendants oppose the instant application in its entirety.

This action sounds in architectural malpractice. The plaintiff alleges the defendants committed architectural malpractice in the performance of services with respect to the construction of certain additions and/or alternations to real property owned by AristaData, Inc. The defendants counterclaimed for breach of contract, account stated and quantum meruit and allege that they are owned $22,222.53 for services rendered to the plaintiff.

During the course of the September 28, 2010 deposition of Edmond G. Loedy, Mr. Loedy testified that the defendants' invoices were calculated from time slips submitted by either himself or one of his assistants. The time slips at issue appear to relate to architectural services provided in 2008. According to the defendants, invoices can be created in one of two manners: (1) the billable time is entered directly into the billing system computer program or (2) the timekeeper can make handwritten time sheets which are then transferred into the billing system computer program in order to create an invoice for the client.

Subsequently, on May 13, 2011, the plaintiff requested the production of the relevant times slips. The defendants produced all of their invoices but responded that they were unable to locate the requested time slips. The plaintiff asserts it is prejudiced by the defendants' inability to locate the time slips and cannot adequately defend itself on the counterclaims. The plaintiff requests this court dismiss the counterclaims or preclude the defendants from offering any evidence at trial regarding the invoices and time slips upon which they base their counterclaims.

In order to invoke the drastic remedy of striking a pleading for failure to disclose pursuant to CPLR §3126, the court "must determine that the party's failure to comply was the result of willful, deliberate and contemptuous conduct or its equivalent." (Beard v. Peconic Foam Insulation Corp., 149 AD2d 555, 556 [2nd Dept. 1989].) Additionally, it is well established that when a party destroys key physical evidence, the spoliator may be sanctioned by striking its pleading if there is a clear showing that the other party is "prejudicially bereft of appropriate means to confront a claim with incisive evidence." (Lamb v. Maloney, 46 AD3d 857,858 [2nd Dept. 2007].) Spoliation sanctions, including striking a party's pleading, are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as [*2]fatal to the other party's ability to present a defense. (Madison Ave. Caviarteria v. Hartford Steam Boilers Inspection & Ins. Co., 2 AD3d 793 [2nd Dept. 2003].)

Here, the plaintiff has failed to establish that the defendants' failure to comply was willful or deliberate. The defendants timely responded to the plaintiff's request with all documentation in their possession. The defendants' response included records labeled as "slip listing" which denote the date services were provided, the nature of the services provided, the name of the individual providing the services as well as the time associated with the services. The defendants further provided copies of all invoices, which appear to coincide with the slip listing, that also denote the period of services rendered, a summary of the nature services rendered, as well as the amount of time associated with the rendered services and the applicable hourly rates.

Based upon the submissions on this application, the court finds that the plaintiff has failed to establish that the defendants' inability to locate the initial hand written time slips deprives it of its ability to establish its defense to the counterclaims. Therefore, it is ordered that the plaintiffs' motion to strike the defendants' counterclaims or for an order of preclusion is denied.

The plaintiff's remaining relief relates to the request for an adverse inference jury instruction. The proper time for considering such a jury instruction is at the charge conference. Therefore, the plaintiffs' request for an adverse inference jury charge is denied, without prejudice.

The Court read and considered the following documents upon this application:

PAGES NUMBERED

1.Notice of Motion........................1-2

Affidavit-David R. Caplan..........1-4

Exhibits...........................A-F

2.Affirmation in Opposition-Kukowski......1-5

Exhibits...........................A-E

Affidavit-Susan J. Fitzgerald......1-8

Exhibits...........................A-D

Memorandum of Law..................1-13

3.Reply Affirmation-Frame.................1-5

Memorandum of Law..................1-8

The foregoing constitutes the decision and order of the [*3]

Court.

Dated:Poughkeepsie, New York

August 17, 2012

ENTER

HON. JAMES D. PAGONES, A.J.S.C.