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DONALD KUGEL, Respondent, v. CITY OF NEW YORK et al., Defendants, and A. JETTA TOWING, Appellant.

While a party's pleading may be struck as a sanction for the intentional destruction of key evidence ( see Amaris v Sharp Elecs. Corp., 304 AD2d 457, lv denied 1 NY3d 507), the documents destroyed by defendant, allegedly because its president believed the corporation had been dissolved, did not constitute key evidence warranting such a harsh sanction. Where the destroyed evidence is not crucial to the proof of the Plaintiff's case, as here, a lesser sanction for spoliation is appropriate ( see Metropolitan N.Y. Coordinating Council on Jewish Poverty v FGP Bush Term., 1 AD3d 168; Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58, 60). As we have said, "[a]lthough some lesser sanction . . . appears to be appropriate, that is a matter best left to the discretion of the trial court and should be made on the basis of the record before it at the time" ( Quinn v City Univ. of N.Y., 43 AD3d 679, 680). Furthermore, the record does not establish that defendant's failure to comply with discovery demands was willful, contumacious or in bad faith ( see Mangual v New York City Tr. Auth., 48 AD3d 212).

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KUGEL v. CITY OF N.Y
(Mar 3, 2009)