On October 31, 2023, the First Department issued a decision in Children’s Magical Garden, Inc. v. Marom, 2023 NY Slip Op. 05464, holding that a jury instruction that required, rather than allowed, jury to make an adverse inference was improper, explaining:
Upon its determination that defendants’ spoliation of evidence amounted to gross negligence, the court directed that the jury be instructed that had the evidence been preserved the evidence would have been against defendants’ position that defendant Marom and/or his workers did not cut down branches or trees or inserted rotting garbage in the barriers on plaintiff’s property. This adverse inference charge is inappropriate because it requires, rather than permits, the jury to draw an adverse inference. In any event, because the conflicting testimony in the record raises questions concerning the existence of the purportedly spoliated evidence, the issues of whether any spoliation had occurred and whether any adverse inference is warranted should be presented to the jury in the first instance.
(Internal quotations and citations omitted).