The First Department Finds No Spoliation Because Roof Repairs were Not Made In Bad Faith, But to Mitigate Damages
Print Article- Posted on: Jun 6 2025
Discovery, an important part of the litigation process, enables litigants to collect information to assist in the prosecution and defense of a case. Section 3101 of the CPLR provides that, in general, “there should be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” by, inter alia, a party and its representatives. “The words material and necessary, are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial.” Ayres v. Bloomberg, L.P., 235 A.D.3d 709, 713 (2nd Dep’t 2025) (citations, internal quotation marks and ellipses omitted).
Because full disclosure is important, there are penalties for abusing the disclosure process. Today’s BLOG article focusses on spoliation[1] of evidence. “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.” Washington v. Church & Nostrand Apparel Corp., 2025 WL 1450331 at *1 (2nd Dep’t May 21, 2025) (citation and internal quotation marks omitted; hyperlink added). Such sanctions can include, inter alia, striking pleadings, prohibiting a party from supporting or opposing claims or defenses, and resolving issues in a manner consistent with the claims of the aggrieved party. CPLR 3216.
Sanctions for spoliation of evidence require a showing: “(1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a ‘culpable state of mind’, and finally, (3) 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.” Voom HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 45 (1st Dep’t 2012) (citation omitted); see also Washington, 2025 WL 1450331 at *1. “A ‘culpable state of mind’ for purposes of a spoliation sanction includes ordinary negligence.” Id. (citation omitted); see also Harry Winston, Inc. v. Eclipse Jewelry, Corp., 215 A.D.3d 421 (1st Dep’t 2023).) “The intentional or willful destruction of evidence is sufficient to presume relevance, as is destruction that is the result of gross negligence.” Parauda v. Encompass Ins. Co. of America, 188 A.D.3d 1083, 1086 (2nd Dep’t 2020). However, in situations where evidence is negligently destroyed, spoliation sanctions will be assessed when accompanied by a demonstration that the destroyed documents were relevant. Gulledge v. Jefferson County, 229 A.D.3d 991, 993 (3rd Dep’t 2024) (citation omitted).
Spoliation of evidence was the issue addressed in Blinbaum v. Chan, a case decided by the Appellate Division, First Department, on June 3, 2025. The parties in Blinbaum were adjoining townhouse owners who entered into a license agreement pursuant to RPAPL 881[2] so that renovations to the defendants’ property could be made. Pursuant to the license agreement, the plaintiff, in his sole discretion, could determine “when and how repairs to his property would be made should any damage be caused by defendants’ renovation.” The plaintiff commenced his action in 2020, claiming that his townhouse was damaged in 2018 by water infiltration from his roof. The plaintiff repaired his roof in 2021 after further water infiltration.
The defendants sought spoliation sanctions in 2022, claiming that the roof repairs violated a court order permitting the defendants’ expert to inspect the roof. The Motion Court denied the motion without prejudice and directed a new inspection to take place in 2023. After the 2023 inspection, the defendants supported their renewed spoliation motion with an affidavit from an architect opining that the roof repairs prosecuted in 2021 prevented a meaningful inspection. The plaintiff opposed the motion by, inter alia, submitting evidence that the defendants’ counsel and insurer inspected the roof in 2018 and “again in 2021 and 2023, when repairs were removed at the request of defendants’ expert, providing full access to the roof.”
The First Department unanimously affirmed the motion court’s denial of the renewed spoliation motion, finding that the defendants “failed to establish that the missing evidence was their sole means of defending against plaintiff’s claims or that the repairs plaintiff made to his roof in July 2021 prejudiced their ability to defend against plaintiff’s claims that defendants’ construction work damaged his property.” (Citations omitted.) The Court noted that the defendants failed to deny that their insurance carrier and counsel took photographs at a 2018 roof inspection and that the defendants’ expert stated he was able to distinguish the repairs made in 2021 from pre-existing repairs. In addition, the Court noted that the license agreement permitted the Plaintiff “to repair his roof, which he had delayed undertaking for years during the litigation.” Because the water infiltration had been ongoing since 2018, “the repairs plaintiff made to his roof do not constitute spoliation, as the record shows that those repairs were done for the purpose of mitigating the damage to plaintiff’s home and not in bad faith to harm defendants’ litigation posture.” (Citation omitted.)
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] This BLOG has written numerous articles addressing spoliation. To find such articles, please see the BLOG tile on our website and type “spoliation” into the “search” box.
[2] RPAPL 881 permits a homeowner to commence a special proceeding for a license to enter the neighboring property of the respondent for the purpose of making repairs to the petitioner’s property that cannot be made without such access and where such access is denied by the respondent. [This BLOG has numerous articles addressing RPAPL 881. To find such articles, please see the BLOG tile on our website and type “RPAPL 881” in the search box.
