On January 22, 2025, the Second Department issued a decision in Gordon v. Field, 2025 NY Slip Op. 00308, holding that spoliation sanctions are unavailable when there was no duty to preserve evidence for litigation, explaining:
Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126. The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence.
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 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. A culpable state of mind for the purposes of a spoliation sanction includes ordinary negligence. However, in the absence of pending litigation of notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices.
Here, the Supreme Court properly denied Dykshteyn’s motion, in effect, pursuant to CPLR 3126 to impose sanctions against Field and Volman for spoliation of evidence or, in the alternative, for a hearing on the issues of whether Field and Volman acted willfully or negligently in disposing of the evidence and the timing of the disposal of the evidence. Dykshteyn did not establish that Field and Volman were on notice that the emails might be needed for future litigation when they were deleted.
(Internal quotations and citations omitted).