CPLR § 3126, SPOILATION OF EVIDENCE

Plaintiff commenced this action seeking damages for injuries he
allegedly sustained when his foot became entangled in a net while
playing tennis at a facility owned and operated by defendants.
Plaintiff's attorney notified defendants that the net was important to
the litigation and requested that it be preserved, and plaintiff, as
well as defendants' insurer, photographed the net. Nevertheless,
defendants failed to preserve the net, and plaintiff moved to strike
defendants' answer and for partial summary judgment on liability in
favor of plaintiff as sanctions for spoliation of evidence. On the
record before us, we conclude that plaintiff established that
spoliation had occurred and thus that some sanction was warranted, but
we agree with defendants that Supreme Court abused its discretion in
granting plaintiff the relief sought (see Tomasello v 64 Franklin, Inc., 45 AD3d 1287, 1288; Enstrom v Garden Place Hotel, 27 AD3d 1084, 1085). We therefore modify the order accordingly.

"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. The gravamen of this burden is a showing
of prejudice" (Kirschen v Marino, 16 AD3d 555,
555-556). Here, plaintiff is able to testify at trial that he fell when
his foot became entangled in the net and, indeed, he testified at his
deposition with respect to the cause of the accident. Furthermore, both
plaintiff and defendants photographed the holes in the net in question,
and those photographs are available to plaintiff to support his
contention that defendants had constructive notice of the [*2]alleged dangerous condition, i.e., holes in the net in which a person playing tennis could become entangled (see generally Morgan v State of New York,
90 NY2d 471, 488). Thus, we conclude that, "[u]nder all the relevant
circumstances, neither striking the answer nor precluding defendant[s]
from offering evidence at trial is warranted" (Quinn v City Univ. of N.Y., 43 AD3d 679,
680). Rather, we conclude that an adverse inference charge against
defendants is a more appropriate sanction. We therefore further modify
the order accordingly.

All the bold is mine.