According to Eatery
Plaintiff claims that on June 27, 2008, somewhere around midnight, she received a take-out order of tuna rolls, with spicy sauce on the side, and that the spicy sauce was tainted with human bodily fluid, which she believes was semen. She states that she noticed something amiss upon first tasting the sushi, after having dipped a piece of the tuna roll into the sauce, and that she spit part of the roll out but swallowed about half of the bite.
Not surprisingly, she claims she got “sick to her stomach,” called 911, and was taken by ambulance to St. Luke’s/Roosevelt Hospital complaining of nausea and stomach cramps. She alleges that as a result of this incident, she continues to suffer physiological and psychological injuries, has had to increase threefold her psychological care for anxiety and depression, and that she still cannot eat sushi, which had been her favorite food.
Of particular importance to the instant motion, plaintiff states that shortly after this incident she sent half of the spicy sauce to a lab for testing and retained the other half in her freezer. Two lab tests came back inconclusive for semen; a third test indicated the possible presence of bodily fluids, but the report cautioned that without a DNA test, this result could not be confirmed. The report of the results specified that the sample would be discarded after six months if plaintiff did not make arrangements to retain it. Plaintiff, who hired her attorneys approximately one month after the incident, made no effort to have the lab company retain the sample, nor did her counsel. At her September 10, 2010 deposition, plaintiff stated at several points in the questioning that she had discarded the frozen sauce after about a year, just about the time that she brought the instant lawsuit. Some two months later, plaintiff submitted an errata sheet that, without explanation, changed her answer to one question, to the extent of stating that she had not thrown the sauce away, but, rather, still had a portion of it. She did not change several other answers indicating that she had, indeed, thrown the sauce away.
Defendant now moves to dismiss this action on the basis of plaintiff’s spoliation of evidence. In support of the motion, defendant urges the Court to ignore plaintiff’s errata sheet correction.
The doctrine of spoliation generates a fair amount of controversy and commentary. See generally, Kevin Faley and Andrea Alonso, Spoliation of Evidence: Considerations and Remedies, NYLJ, July 25, 2011, p. 4, col. 4. However, the cases and comments generally assume that spoliation has occurred and consider the remedy. This Court’s research has not turned up any case indicating what to do when the alleged spoliator claims that she still possesses the evidence, unaltered.
Had plaintiff unequivocally admitted that she destroyed or discarded the evidence in issue, this Court would feel constrained to dismiss this action, given the importance of said evidence. However, despite the inconsistencies in her story, plaintiff now claims that she still possesses some of the special sauce. Thus, pursuant to CPLR 3120, defendant can request to “inspect” and/or “test” the sauce, which apparently it has not done heretofore. Today’s decision allows defendant to move again for dismissal, on the ground of spoliation, if, after such testing, defendant believes that, despite her current stance, plaintiff indeed discarded the special sauce. If there is still a dispute, presumably a hearing will have to be held. Defendant can also, of course, simply contest plaintiff’s credibility, and her proposed evidence, at trial. However, at this juncture, the Court finds that the harsh sanction of outright dismissal is not warranted.
Thus, the motion is denied, without prejudice, as indicated herein.