Hall v. Elrac, Inc., 79 A.D.3d 427 (N.Y. App. Div. 2010). · Go Syfert
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Hall v. Elrac, Inc., 79 A.D.3d 427 (N.Y. App. Div. 2010). Cases Citing This Book View Copy Cite
7 citation events (7 in the last 25 years) across 2 distinct courts.
Strongest positive: Castillo v. Cannon Point S., Inc. (nysupctnewyork, 2024-09-06)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) Castillo v. Cannon Point S., Inc.
N.Y. Sup. Ct., New York Cty. · 2024 · confidence medium
Plaintiffs motion is granted only to the extent that plaintiff is entitled to an adverse inference charge at the time of trial as the "[ s]triking [of] a pleading is usually not warranted unless the evidence is crucial and the spoliator's conduct evinces some higher degree of culpability" (Russo v BMW of N. Am., LLC, 82 AD3d 643, 644 [1st Dept 2011], citing Hall v Elrac, Inc., 79 AD3d 427, 428 [1st Dept 2010] ["[a]bsent proof that the destruction of [evidence] was willful, contumacious or in bad faith, the court properly 160080/2020 CASTILLO, VICTOR vs.
discussed Cited as authority (rule) Bah v. City of New York
N.Y. Sup. Ct., New York Cty. · 2024 · confidence medium
However, in the absence of proof that the destruction of the evidence was willful, contumacious, or in bad faith, courts have declined to impose the drastic sanction of striking a defendant's answer and have instead deferred the issue of the appropriate sanction for spoliation of evidence to trial (Hall v Elrac, Inc., 79 AD3d 427, 428 [1st Dept 2010]). 152996/2015 BAH, OSMAN vs.
cited Cited as authority (rule) Wager v. Rao
N.Y. App. Div. · 2019 · confidence medium
Ltd. v Compania Andina de Comercio Ltda , 68 AD3d 672, 673 [1st Dept 2009]; Hall v Elrac, Inc. , 79 AD3d 427, 427-428 [1st Dept 2010]).
discussed Cited as authority (rule) Russo v. BMW of North America, LLC
N.Y. App. Div. · 2011 · confidence medium
Squitieri v City of New York, 248 AD2d 201, 203 [1998]), striking a pleading is usually not warranted unless the evidence is crucial and the spoliator’s conduct evinces some higher degree of culpability (see Hall v Elrac, Inc., 79 AD3d 427, 428 [2010]; Baldwin v Gerard Ave., LLC, 58 AD3d 484, 485 [2009]).
cited Cited "see, e.g." Indemnity Insurance v. A 1 Entertainment LLC
N.Y. App. Div. · 2013 · signal: see also · confidence low
Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept 2009]; see also Hall v Elrac, Inc., 79 AD3d 427 [1st Dept 2010]).
cited Cited "see, e.g." Indemnity Insurance v. A 1 Entertainment LLC
N.Y. App. Div. · 2013 · signal: see also · confidence low
Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept 2009]; see also Hall v Elrac, Inc., 79 AD3d 427 [1st Dept 2010]).
Retrieving the full opinion text from the archive…
Jawaun Craig Hall
v.
Elrac, Inc., Doing Business as Enterprise Rent A Car
Appellate Division of the Supreme Court of the State of New York.
Dec 2, 2010.
79 A.D.3d 427
Cited by 7 opinions  |  Published

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about October 9, 2009, which denied plaintiff’s motion to strike defendant Elrac’s answer, or alternatively, to order that a “spoliation inference charge” be given or to preclude defendant Elrac from defending against the allegation of negligence, unanimously affirmed, without costs.

We find that the IAS court properly considered the affidavit of defendant Elrac’s senior account manager in the damage unit in concluding that defendant’s disposal of the vehicle in question was not done in bad faith. Initially, plaintiffs claim that the affidavit was not in admissible form because it was signed outside New York State but notarized by a New York notary, without providing a certificate of conformity as required by CPLR 2309 (c) and Real Property Law § 299-a is unpreserved (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [2009]; P.T. Bank Cent. Asia v Chinese Am. [*428] Bank, 229 AD2d 224, 229 [1997]). In any event, as long as the oath is duly given, authentication of the oath giver’s authority can be secured later, and given nunc pro tunc effect if necessary (Matapos Tech. Ltd., 68 AD3d at 673).

The affidavit was based on the affiant’s personal knowledge and his review of the documents, including wholesale purchase order/bill of sale and the check received by defendant in payment for the wrecked vehicle, sold as salvage, which established the date of transfer. This is not a summary judgment motion, where the movant’s evidence must be in admissible form, and even a summary judgment motion affords some flexibility to the party opposing the motion (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

Absent proof that the destruction of the vehicle was willful, contumacious or in bad faith, the court properly declined to impose the drastic sanction of striking defendant’s answer and, instead, deferred the issue of the appropriate sanction for spoliation of evidence to trial (see Christian v City of New York, 269 AD2d 135, 137 [2000]). Concur — Tom, J.P., Friedman, DeGrasse, Freedman and Manzanet-Daniels, JJ.