Verizon New York v. ELQ Industries
NEW YORK COUNTY
Justice Saliann Scarpulla
Verizon sued to recover for property damage they alleged ELQ Industries caused by piercing Verizon's cables and conduits in different locations exposing the cables to nearly 10 inches of rain. ELQ moved to strike the complaint and dismiss Verizon's action for failure to comply with prior court orders, and spoliation of evidence. The parties entered into so-ordered stipulations that Verizon agreed to produce the damaged cables or provide an affidavit from an employee with knowledge attesting that they were no longer available. The court noted Verizon has yet to produce the damaged items or an affidavit. It stated it was unclear how Verizon expected to proceed on its claims for damages without producing the allegedly damaged cables. Also, the court stated even if Verizon's actions were not deemed willful and contumacious, their failure to preserve the alleged damaged property forming the basis of the lawsuit constituted spoliation, and negligence. It further noted Verizon, as the plaintiff, was on notice the allegedly damaged property was integral to the action, and should have been preserved, thus did not need to wait for a request from ELQ. Thus, it granted the motion to strike the complaint and dismissed the action.