        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1074
CA 15-00134
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


BILL’S FEED SERVICE, LLC, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

WILLIAM ADAMS, DEFENDANT-RESPONDENT.


SCHMITT & LASCURETTES, LLC, UTICA, LAW OFFICES OF DESTIN C.
SANTACROSE, BUFFALO (ERIN K. SKUCE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HRABCHAK & GEBO, P.C., WATERTOWN (MARK G. GEBO OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Jefferson County (Hugh
A. Gilbert, J.), entered June 3, 2014. The order denied without
prejudice the motion of plaintiff to dismiss the counterclaim of
defendant.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action to recover money
owed for animal feed it supplied to defendant for his dairy cows.
Defendant asserted a counterclaim for money damages, alleging that,
among other things, the animal feed was defective and harmed his cows
and farming business. Plaintiff served defendant with a notice to
preserve evidence that specifically included the subject feed.
Following discovery, plaintiff moved to dismiss the counterclaim on
the ground of spoliation of evidence, i.e., for defendant’s alleged
failure to preserve feed samples and deceased cows. Supreme Court
denied the motion without prejudice to any appropriate similar
application during trial. We affirm.

     “A party seeking a sanction pursuant to CPLR 3126 such as
preclusion or dismissal is required to demonstrate that a litigant,
intentionally or negligently, dispose[d] of crucial items of evidence
. . . before the adversary ha[d] an opportunity to inspect them . .
. , thus depriving the party seeking a sanction of the means of
proving his claim or defense” (Koehler v Midtown Athletic Club, LLP,
55 AD3d 1444, 1445 [internal quotation marks omitted]). “Spoliation
sanctions may be appropriate even if the destruction occurred through
negligence rather than wilfulness, and even if the evidence was
destroyed before the spoliator became a party, provided [the party]
was on notice that the evidence might be needed for future litigation”
                                 -2-                          1074
                                                         CA 15-00134

(Enstrom v Garden Place Hotel, 27 AD3d 1084, 1086 [internal quotation
marks omitted]). Here, we conclude that plaintiff failed to establish
that defendant intentionally or negligently disposed of the evidence
at issue. The record establishes that defendant disposed of the feed
samples and deceased cows before he had any notice that plaintiff
intended to commence the instant action and, “[i]n the absence of
pending litigation or notice of a specific claim, a defendant should
not be sanctioned for discarding items in good faith and pursuant to
its normal business practices” (Anthony v Wegmans Food Mkts., Inc., 11
AD3d 953, 954 [internal quotation marks omitted]; see C.P. Ward, Inc.
v Deloitte & Touche LLP, 74 AD3d 1828, 1830-1831).




Entered:   October 9, 2015                     Frances E. Cafarell
                                               Clerk of the Court
