CPLR § 3126

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Northfield Ins. Co. v Model Towing & Recovery, 2009 NY Slip Op 04878 (App. Div., 2nd, 2009)

IDT Corp. v Morgan Stanley Dean Witter & Co., 2009 NY Slip Op 05253 (App. Div., 1st, 2009)

IDT alleges that Morgan Stanley produced more than 2,000 pages of
documents in response to IDT's subpoena and represented in writing that
it had fully complied with the subpoena, but that during the course of
discovery in this action IDT learned that Morgan Stanley produced only
a small percentage of the documents that were relevant and responsive
to IDT's subpoena and that the excluded documents, consisting of an
additional 500,000 pages, included critical "smoking gun" documents.
One of those documents is a letter from two Morgan Stanley executives
to Telefonica's chairman just two months after the contract with IDT
was signed, advising Telefonica to sell its equity in the project at
cost and encouraging Telefonica to reevaluate its agreements with IDT.
IDT alleges that this concealment by Morgan Stanley caused it great
damage in the arbitration because the withheld documents would have
enabled IDT to prove that Telefonica had breached the contract as early
as October 1999 rather than somewhere between October 2000 and March
2001, as the arbitrators determined, thus increasing the award of
damages.

Since IDT had not initially included causes of action for
fraudulent misrepresentation and fraudulent concealment in its
complaint, it sought leave to amend the complaint ^[FN2].
Supreme Court granted the motion, rejecting Morgan Stanley's arguments
that the claims were legally deficient because IDT could not
demonstrate that it suffered any harm as a result of not having the
documents during the arbitration and that the documents were
cumulative. The court found that IDT had pleaded the elements of fraud
and fraudulent concealment, noting that the elements of fraudulent
concealment are the same as fraud, with the addition that the party
charged with the fraud must have had a duty to disclose.

Subsequently, Morgan Stanley moved to dismiss those causes of
action for failure to state a cause of action on the ground that New
York does not recognize spoliation of evidence as a cognizable tort. On
constraint of the Court of Appeals' decision in Ortega v City of New York (9 NY3d 69
[2007]), Supreme Court granted the motion, concluding that IDT's
framing of the claims as fraud claims "[did] not take it out of the
rules regarding spoliation of evidence claims." This was error.

Supreme Court correctly found in its initial assessment that
IDT had sufficiently alleged claims for fraud and fraudulent
concealment. IDT alleges that Morgan Stanley made a material
misrepresentation of fact when it represented that it had fully
complied with the subpoena; that the misrepresentation was made
intentionally to defraud or mislead IDT; that IDT reasonably [*3]relied on the misrepresentation, and that it suffered damage as a result of its reliance (see e.g. P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V.,
301 AD2d 373, 376 [2003]). In addition to these elements, IDT alleges
that Morgan Stanley had a duty to disclose and that it failed to do so,
thus stating a claim for fraudulent concealment (id.).

The Court of Appeals' decision in Ortega v City of New York (9 NY3d 69 [2007], supra)
does not require dismissal of IDT's claims for fraud and fraudulent
concealment simply because the vehicle for the alleged fraudulent
conduct was concealment of evidence. First, the Ortega holding
involved a claim of negligent spoliation of evidence, not a claim of
intentional concealment or spoliation of evidence. Second, unlike the
City in Ortega, which the court noted was a third party with a
duty to preserve evidence but with no connection to the underlying
litigation, Morgan Stanley was not an uninvolved third party to the
arbitration proceeding between IDT and Telefonica. It had fiduciary
relationships with both parties, and the concealment of documents from
IDT arguably both benefitted its client Telefonica in the arbitration
and protected Morgan Stanley from being sued by IDT.

Two additional circumstances distinguish this case from Ortega. The Ortega
court refused to recognize a third-party spoliation claim because the
content of the lost evidence is unknown, thus leading to speculation as
to causation and damages. Here, there is no such concern because the
concealed documents have been produced. The court also found that it
would not be sound public policy to permit an independent tort of
spoliation to be asserted against a municipality. There are no public
policy reasons to disallow IDT's claims for fraud and fraudulent
concealment against its fiduciary based on the latter's spoliation of
subpoenaed documents.

Importantly, the Ortega court wrote that "[a]t bottom,
plaintiffs seek recognition of a new cause of action because they
cannot meet the traditional proximate cause and actual damages
standards at the foundation of our common-law tort jurisprudence" (9
NY3d at 80). IDT suffers from no such impediment. It has met the
pleading standard for fraud and fraudulent concealment and thus has a
remedy under existing tort principles. There is no indication in Ortega
that the court would reject an already recognized common-law tort claim
simply because the claim was based on the spoliation of evidence.

We note that the New Jersey courts, which do not recognize a
separate tort action for intentional spoliation, recognize a claim of
fraudulent concealment based on the intentional spoliation of evidence (see e.g. Rosenblit v Zimmerman, 166 NJ 391, 766 A2d 749 [2001]; R.L. v Voytac, 402 NJ Super 392, 407-408, 954 A2d 527, 536 [App Div 2008] certif granted in part 197 NJ 259, 962 A2d 530 [2008]; Viviano v CBS, Inc., 251 NJ Super 113, 597 A2d 543 [App [*4]Div 1991] certif denied 127 NJ 565, 606 A2d 375 [1992]). There is no sound reason for New York courts to conclude otherwise.