NY Slip Op 06121 (2d Dep't 7/15/15), plaintiff, a detective in the Emergency Services Unit of the NYPD, was injured while changing the CO² cylinder on a tranquilizer gun. The end cap of the gun was the key to liability. Not only was the end cap "lost", but so was the gun once repaired with a new end cap. This occurred 30 days or so before the service of plaintiff's notice of claim.
While the trial court struck the City's answer for its conduct, AD2 only grants plaintiff a negative inference at trial, because striking the answer is too "drastic" a remedy. After all, the "loss" of the end cap and gun were never proven to be intentional and the effect of their loss affected both plaintiff and the City equally. While the City may have "lost" the evidence, the prejudice was mutual. Plaintiff could still prove his case without that evidence. Really?
The message is clear and defendants are taking note, both in state and federal practice. No document or other piece of evidence is immune from "loss." A mere negative inference, sympathetically explained to a jury ("Hey, things happen") is better than damaging evidence that can never be explained away.