A little over two years ago, the New York Court of Appeals in MetLife Auto & Home v. Joe Basil Cheverolet, Inc. refused to recognize an independent cause of action for third-party negligent spoliation .  Justice Solomon of Supreme Court, Kings County recently wrote an extremely thoughtful opinion in Ortega v. City of New York, recognizing an independent cause of action for spoliation.

This case was riddled with unexplained issues.  The plaintiffs were severely burned when one of the plaintiffs’ automobiles caught fire for an unexplained reason.  One of the plaintiffs obtained a pre-action order for the City of New York to preserve the subject automobile for inspection; however, the automobile was destroyed.  The plaintiffs commenced an action against the City based on spoliation and contempt of court.  Although Justice Solomon did not grant summary judgment in favor of either plaintiff, he recognized an independent cause of action for spoliation.  This decision provides a great overview of how the different states treat this type of cause of action and, will no doubt, be cited or distinguished in the development of this cause of action in New York.