SARACH, STEPHEN v. M&T BANK CORPORATION

I respectfully dissent from the majority’s conclusion that “defendant ‘wilfully fail[ed] to disclose information’ that the court had ordered to be preserved (CPLR 3126).” I also disagree with the sanction imposed. Nevertheless, I agree that a remedy is necessary to cure the minimal prejudice suffered by plaintiff in not having been able to inspect the surveillance video in question. For the reasons set forth below, I would modify Supreme Court’s order, vacate the sanction imposed, reinstate the answer, and preclude defendant from introducing evidence at trial in its direct case regarding the…