About a year ago, New York Civil Law posted about a Supreme Court, Kings County decision -- Ortega v. City of New York -- that recognized the viability of an independent cause of action for spoliation. The Appellate Division, Second Department rejected in their opinion the plaintiffs' contention that they could recover damages for spoliation of evidence. The Second Department searched the record and granted summary judgment to the City of New York on the plaintiffs' claim for spoliation of evidence. The New York Court of Appeals recently granted leave to appeal to hear whether an independent cause of action for spoliation exists under these circumstances.As I stated in the prior post, this case was riddled with unexplained issues. The plaintiffs were severely burned when one of the plaintiffs' automobiles caught fire for an unexplained reason. One of the plaintiffs obtained a pre-action order for the City of New York (a third-party not responsible for the automobile fire) to preserve the subject automobile for inspection; however, the automobile was destroyed. The plaintiffs commenced an action against the City based on spoliation and contempt of court.
New York Civil Law will keep you apprised of this appeal and will possibly post the motion papers on the application for leave to appeal.