On April 17, 2026, Justice Boddie of the Kings County Commercial issued a decision in WHOP, Inc. v. Salisbury, 2026 NY Slip Op. 31693(U), awarding limited spoliation sanctions for negligent destruction of evidence because of limited evidence of prejudice, explaining:
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. 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.
Here, it is undisputed that defendant’s duty to preserve had attached by the time her phone was lost, as litigation had already been commenced by that time. It is further undisputed that relevant phone data, including text message history, was not preserved and could not be recovered after the phone was stolen. While defendant contends that she took reasonable steps and believed that she had the icloud backup properly set, such unverified assumptions do not constitute reasonable preservation efforts.
A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence. Here, at a minimum, defendant’s failure to confirm that responsive data was in fact preserved supports a finding of ordinary negligence, and thus plaintiff has established that the evidence was destroyed by defendant with a culpable state of mind.
As to relevance and prejudice, although plaintiff has demonstrated that relevant communications once existed on defendant’s phone. the record does not establish that such evidence was central to plaintiffs claims in this declaratory judgment action, which turns primarily on contractual interpretation of the parties’ equity agreement. To the extent the allegedly missing communications relate to defendant’s claims of discrimination and retaliation, those issues are the subject of a separate action pending before Justice Leslie A. Stroth, and are not directly at issue in the instant matter. Under these circumstances. plaintiff has not demonstrated the degree of prejudice necessary to warrant the more severe sanctions requested.
Accordingly, a limited remedy is appropriate. The Court declines to impose the drastic relief of broad preclusion or to award attorneys’ fees as requested by plaintiff. However, to prevent any unfair advantage, defendant shall be precluded from affirmatively relying on the contents of any lost or unproduced phone-based communications, or suggesting that such communications support her position.
(Internal quotations and citations omitted).