The present set of motions before the Court (heard in Special Term on June 5, 2025), are hereby decided as follows (taken out of sequence for brevity's sake):

1. Motion #001: Defendant 's motion seeking an order for the appointment of a Referee to supervise the deposition noticed to be taken of one of its representatives, Ms. Heather DiDomenico, pursuant to CPLR 3104 (Dkt. No. 9 with supporting affirmation of counsel and exhibits, Dkt. Nos. 10-15). On the record, plaintiff did not object to the requested appointment on the condition that defendant would be solely responsible for the payment of any appointed referee's fees.

Disposition: Bench ruling GRANTING IN PART a modified version of the relief requested by way of advising counsel that any question(s) or line of questioning during Ms. DiDomenico's deposition that are deemed by counsel for the defendant to fall outside the permissible scope of deposition inquiry and/or not capable of being addressed through the objections otherwise available to be made under Uniform Rule 221.1, 221.2 and 221.3 (incorporating by reference CPLR Rule 3215) will be resolved by way of a conference call to the Court during and from the situs of the deposition.

2. Motion #003: Defendant 's motion pursuant to CPLR § 3101 (i) seeking an order to compel the disclosure of certain photos and/or videos taken by plaintiff's counsel and expert of other pieces of equipment during the time the parties were at defendant's facility where an inspection of the subject weight bench was to be conducted on December 20, 2024, Dkt. No. 33 with supporting affirmation of counsel and exhibits, Dkt. Nos. 34-35. The motion was responded to by plaintiff with counsel's affirmation in opposition. Dkt. No. 41.

Disposition: Motion DENIED from the Bench in accordance with CPLR § 3101 (d) (2) which is controlling over the disclosure of items at issue which do not fall under or within the exception laid out under § 3101 (i).

Order Submission: Counsel for the defendant will prepare and circulate a proposed order on the disposition rendered on Motion #001 and plaintiff's counsel will prepare and circulate a proposed order on the disposition reached on Motion #003.

Motion #002 (plaintiff's cross-motion for sanctions in the form of an adverse inference [*2]charge at trial and/or the dismissal of defendant's affirmative defenses of comparative negligence and assumption of risk based on the defendant's alleged failure to preserve and maintain the weight bench which was involved in the incident in the condition it was in at the time of the incident) was argued at length and became the most consuming motion topic of the day for consideration by the Court predicated on the factual background that transpired in this case since the date of the incident up to the date of the scheduled inspection on December 20, 2024. The papers filed and considered by the Court were as follows: (i) Plaintiff's Notice of Motion, Dkt. No. 16 with supporting affirmation of counsel and exhibits, Dkt. Nos. 17-31 (NOTE: Exhibit 31 being the affirmation of Corey Werner) and a memorandum of law (Dkt. No. 32); defendant counsel's affirmation in opposition, Dkt. No. 36, with accompanying exhibits, Dkt. Nos. 37-39; and (iii) plaintiff counsel's reply affirmation of counsel, Dkt. No. 40.

At the conclusion of oral argument, the Court reserved decision which is hereby rendered as follows:

This action arises from an incident that occurred on September 10, 2022, at defendant's French Road gym/fitness center when the back support section of the weight-lifting bench used by the plaintiff to perform bench presses with dumbbell weights collapsed. The incident was captured on defendant's premises surveillance video and a brief segment of the video footage was apparently copied on the cellphone video of one of defendant's employees.^[FN1] That cellphone clip of the incident was produced by defendant during discovery and was included as one of four video clips on a flash drive that was submitted to the Court as Exhibit A in support of plaintiff's motion. Dkt. No. 17. Plaintiff's counsel sent an initial letter dated October 17, 2022 to defendant advising of his retainer and representation of the plaintiff, and that the letter served as "formal notice of a potential claim against Catalyst Fitness," further requesting the defendant to inform its premises liability insurance carrier of his representation, and most notably relevant to this motion, a concluding penultimate paragraph advising the defendant to, inter alia, "Finally, please preserve all evidence from the September 10, 2022, incident, including but not limited to the weight bench involved in its current condition, along with any parts or pieces thereof; any maintenance and repair records, including work orders and receipts for payment of repairs, pertaining to the bench involved (underscore added) . . . " The bench preservation notice was reiterated with another letter from plaintiff's counsel to the defendant dated November 23, 2022. Both letters were marked and filed as Exhibit E in support of plaintiff's motion (Dkt. No. 22).

It is undisputed that when counsel for the parties (with defendant's counsel being accompanied by Ms. DiDomenico and plaintiff's counsel being accompanied by his retained expert) arrived at the defendant's gym/fitness facility where this incident occurred to conduct an inspection of the subject bench on December 20, 2024, and went to the storage room area at the facility where the bench was purportedly placed after and kept since the time of this incident, the bench was not there. It is further undisputed that Ms. DiDomenico went to a nearby storage space (located app. 10 minutes away) that was occupied and used by the defendant to see if the [*3]bench had been relocated there.^[FN2] She came back to the inspection site and informed counsel that the bench was at the other storage facility and was being picked-up to be delivered to the parties where they were that morning.

When the bench from the other storage facility arrived it was noticed by plaintiff's counsel to either not be the actual bench (or "subject bench") that was involved in the incident or if it was the subject bench then it had been significantly altered and modified to replace the missing knob and install functioning pin springs in the place of the malfunctioning springs that were noted immediately after the incident occurred by one of defendant's on-site employees who was informed of the incident shortly after it occurred (see statement dated October 14, 2022, and affidavit sworn to on April 2, 2025, given by defendant's on-site employee who was working at the time of the incident, Corey Werner. Exhibits D and N, Dkt. Nos. 21 and 31, respectively, [and collectively the "Werner Statements"]).

The plaintiff's contention on this spoliation motion is that the bench delivered for the inspection was not the subject bench involved in the incident, or alternatively, even if it was the subject bench, it was no longer in the physical condition personally observed and reported by the defendant's employee shortly after the incident, see "Werner Statements", supra. See also, Exhibit C, Dkt. No. 20 (Health Club Incident Report [unsigned but accompanied by a business card of "Garrett Sengbush-General Manager"] noting "knob on back crossbar pin missing" and "spring mechanism on both knobs not working"). From a review of the four (4) video clips contained in plaintiff's Exhibit A and the still photographs taken and produced by the defendant during discovery (Exhibit F, Dkt. No. 23), along with the explicit content of the Werner Statements and the self-admitted notations made in the Health Club Incident Report, the bench produced for inspection was not a bench in the exact unaltered condition of the subject bench at the time of the incident. Whatever was delivered and produced on December 20, 2024, may have been the bench plaintiff laid on to begin his weightlifting exercise, but it was not the same one seen and confirmed by photos taken and written reports of the defendant to be the bench in the condition plaintiff encountered on September 10, 2022.

While the defendant strongly objects to the timing of the motion (that it is premature and should be held in abeyance until remaining discovery is completed . . . primarily depositions of an unknown number of defendant's other employees), and that it is unworthy of the degree of sanction relief sought by the plaintiff, the papers filed in opposition to the motion were void of any sworn statement(s) directly from anyone from the defendant's reservoir of owner(s), agents, employees or representatives (excluding retained counsel) who had personal knowledge to confirm the identity and authenticity of the bench delivered and produced at the time of the inspection as the same one in the exact same condition it was in on September 10, 2022 (which it was not), or alternatively, to explain why and when the alterations were made to put the subject bench in the repaired and functional condition it was in on December 20, 2024.

The issue before the Court is whether the above-described and unexplained failure of the defendant to preserve and maintain the subject bench so it would remain exactly in the condition it was in on the date and time of the incident, constitutes spoliation of evidence.

The legal analysis of the issue has been cogently summarized by the Court of Appeals as follows:

" A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a "culpable state of mind," and "that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 AD3d 33, 45, 939 N.Y.S.2d 321 [1st Dept.2012], quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 [S.D.N.Y.2003] ). Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed (see Zubulake, 220 F.R.D. at 220). On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party's claim or defense (see id.).

Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d 543, 547—548 (2015).

The above-quoted statement reciting the Pegasus 3-prong test for spoliation has been fully adopted and explicitly enunciated by the Appellate Division, Fourth Department, on numerous occasions, including as recently as last year in the case of Storm v. Kaleida Health, 229 AD3d 1239, 1240 (4th Dept. 2024) (also citing its prior enunciation of the Pegasus criteria in Page v. Niagara Falls Memorial Medical Center, 167 AD3d 1428, 1430 [4th Dept. 2018]).

In the present case, the first two Pegasus prongs have been established by plaintiff, predominantly on the failure of the defendant to offer any explanation to mitigate or be excused from a finding in the plaintiff's favor on both. On the first prong, it is undisputed that the defendant was always the owner and possessor of the subject bench, hence "the party having control over the evidence," and who "possessed an obligation to preserve it" based on the letters by plaintiff's counsel sent in October and November of 2022. Additionally, defendant's awareness of its preservation obligation (based on the likelihood of a claim being made by the plaintiff for the injuries suffered by him as a result of the subject incident), was its own review and copying of the surveillance video which to any reasonably-minded person would have and should have been co-extensively treated as an undeniable duty to keep what was shown on that video (specifically the "instrumentality" [the bench] involved in the incident) exactly the way it was until further notice to the contrary.

On the second prong, while it is unknown as to how, when or why the loss (non-production) of the subject bench occurred, or alternatively, an explanation of when, why and by whom post-incident alterations were made to the subject bench, it is clear that the "thing" produced by the defendant for inspection was not the "thing" in the exact same condition it was in on the day of the incident. Without any submission from someone on the defendant's side of this controversy with personal knowledge to explain, answer or provide some reasonable excuse in connection with any of those questions, it is inescapable to conclude that, "the evidence was destroyed with a 'culpable state of mind,' chargeable to the defendant, and under all the known [*4]facts and circumstances presented, the loss or significant alteration and modification of the condition of the subject bench, was at a minimum caused by the negligent failure of the defendant to properly preserve the bench in the condition it was in at the time of the incident.

At the present time ^[FN3] , it is not determinable if the loss of or alteration/modification actions taken to mutate the subject bench by the defendant was intentional or willful, and therefore, the third prong comes into play, to wit, whether the destroyed (or significantly altered) evidence is "relevant to the party's claim or defense." This prong has also been colloquially referenced as a showing of "prejudice" to the party whose claim or defense has been adversely impacted by the evidentiary loss committed by the other party. See, Mahiques v. County of Niagara, 137 AD3d 1649, 1651 (4th Dept. 2016) (confirming "degree of prejudice to the opposing party" as one of the relevant factors in a spoliation analysis); and Koehler v. Midtown Athletic Club, LLP, 55 AD3d 1444, 1445 (4th Dept. 2008) ("A party seeking a sanction pursuant to CPLR 3126 such as preclusion or dismissal is required to demonstrate that 'a litigant, intentionally or negligently, dispose[d] of crucial items of evidence ... before the adversary ha[d] an opportunity to inspect them' ..., thus depriving the party seeking a sanction of the means of proving his claim or defense. The gravamen of this burden is a showing of prejudice" (Kirschen v. Marino, 16 AD3d 555, 555—556, 792 N.Y.S.2d 171) (underscore added)."

In the Court's view, the loss or significant alteration of the subject bench deprives the plaintiff of access to and the opportunity to observe and inspect a "crucial item of evidence" in the condition it was in at the time of the incident, At a minimum, the careless and negligent failure of the defendant to preserve the bench intact warrants an adverse inference charge in support of the plaintiff's negligence cause of action, and to the extent necessary, against any comparative negligence or other alleged affirmative culpable conduct defense proffered by the defendant at the time of trial. The striking of those defenses at the present time, however, is not appropriate under the well-established guidelines articulated by the Fourth Department on this issue. In very similar types of cases involving evidence loss, destruction or mishandling viewed as actionable spoliation, the Appellate Division has reversed or modified lower court orders striking pleadings (and/or affirmative defenses) and substituted its judgment to impose the sanction of an adverse inference charge, Tomasello v. 64 Franklin, Inc, 45 AD3d 1287 (4th Dept. 2007), Enstrom v. Garden Place Hotel, 27 A.D. 1084 (4th Dept. 2006) and Martinez v. Paddock Chevrolet, Inc, 85 AD3d 1691 (4th Dept. 2011); especially where the spoliation does not destroy the non-responsible party's opportunity to prove his claim or defense. Sarach v. M&T Bank Corp., 140 AD3d 1721 (2016); Johnson v. Ayyub, 115 AD3d 1191 (4th Sept. 2011), and furthermore when there has been a delay in in scheduling and conducting the inspection similar to the time lag present in this case (see Mahiques, at 1652, holding that in light of a two-year delay in seeking the inspection, "the destruction of the machine did not occur before the adversary ha[d] and opportunity to inspect it" [internal quotation marks omitted] thus warranting an adverse inference but not a striking of the defendant's pleading, citing Koehler, 55 AD3d at [*5]1445). Plaintiff's reliance on the Memorandum and Order reached in Buffalo Biodiesel, Inc. v. Blue Bridge Financial, LLC, 228 AD3d 1274 (4th Dept. 2024), affirming the striking of the complaint based on the "grossly negligent spoliation" of emails that were at the heart of the dispute has been considered by the Court and found to be distinguishable on the grounds that the spoliation at issue in this case (as demonstrably known so far) does not show "that the plaintiff has been 'prejudicially bereft' of the means of prosecuting his action (case citation omitted." Sarach, supra at 1722, or that the spoliation has "fatally compromised" the action, see Johnson v. Ayyub, supra at 1192-1193.

Finally, it is the Court's opinion at this time that the spoliation committed by the defendant must also be supplementally sanctioned by precluding the defendant from offering any testimony by its IME examiner, Dr. William Wind, about a comment or response to a question allegedly made by the plaintiff during the "history" dialogue phase of the IME that was entirely unrelated to the physical characteristics of the injury-producing event . . . to wit, the statement contained in the IME Report, Dkt. No. 39, that, "He (plaintiff) stated that he replaced an adjustable bench pin to incline the work-out bench." The preclusion of "proof favorable to the spoliator to restore balance to the litigation" is among the forms of relief available to sanction spoliation, Martinez v. Paddock Chevrolet, Inc., id. at 1692. Any version of that alleged remark by the plaintiff, regardless of how or by whom it was notated and/or transcribed to produce the typewritten report from such notes, is in direct conflict with the plaintiff's sworn deposition testimony, and more significantly, if any alleged action by the plaintiff to touch or make contact with the bench to alter or re-align its configuration before beginning his exercise routine on it had occurred, such action would have been shown on the defendant's video surveillance footage of the incident. It is inconceivable that the defendant who had complete control over the video footage available to see and watch everything the plaintiff did after he entered the facility that day, would not have saved and preserved any such footage purportedly showing the plaintiff touching, altering or reconfiguring the physical posture and condition of the bench, and should not now be allowed to somehow postulate to a jury an argument of comparative negligence based on a back-door remark allegedly made to the IME doctor. While the pleading life of the comparative negligence affirmative defense survives this motion, nothing from Dr. Wind's report or his testimony on that issue will be allowed at trial.

Submit order accordingly.