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FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017
STATE OF NEW YORK
COUNTY OF KINGS
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MARIA URENA, Index No. 511145/2016
Plaintiff,
- against -
JP MORGAN CHASE,
WILLIAM LI, and
MELISSA MATHEY,
Defendants.
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PLAINTIFF’S MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO
STRIKE DEFENDANTS’ PLEADINGS
Jared M. Lefkowitz, Esq.
1001 Avenue of the Americas, Suite 1114
New York, NY 10018
(212) 682-1440
Attorney for Plaintiff Maria Urena
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Plaintiff Maria Urena, by and through her counsel Jared M. Lefkowitz, respectfully
submits this memorandum of law in support of her motion:
(a) to strike defendants’ pleadings and for other related relief pursuant to CPLR §3126
based upon intentional spoliation of crucial evidence in this case; and
(b) to the extent that defendants “miraculously” unearth the spoliated evidence during
the pendency of this motion, we seek monetary sanctions against defendants for
having withheld the crucial evidence in the first place and wasting this Court’s time.
FACTS
Plaintiff’s primary claim in this case is gender/pregnancy discrimination in violation
of the New York State Human Rights Law and the New York City Code. As set forth in the Verified
Complaint (Exhibit A), as of November 2015 plaintiff was employed by defendant Chase as Lead
Teller, after having worked at Chase for approximately six years and after having received several
promotions.
It is not disputed by plaintiff’s Branch Manager defendant William Li that on the
morning of November 12, 2015 plaintiff was using the defendants’ Cash Recycler (“CR”) machine
in the normal course of her duties when the CR machine malfunctioned:
Q. And so you can confirm that Maria is not lying when she says
there was a problem with the CR machine when she was in the
middle of a transaction. You can confirm that that's true.
A. Yeah, there was a jam.
Q. You saw it with your own eyes.
A. Yes.
Q. Do you believe that Maria somehow intentionally caused the
jam?
A. I wouldn't know.
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Q. Do you believe that Maria intentionally caused the jam?
A. No, I don't believe she intentionally caused it.
Q. Had you seen the CR machine jam like that before?
A. Yes, I've seen it jam before.
Exhibit B, William Li deposition, page 107 line 24 - page 108 line 16
Further, it is not disputed that plaintiff notified Mr. Li within minutes of when it
happened:
Q. I'm just asking you what she told you.
A. Okay.
Q. She told you it shut off?
A. Yes.
Q. And it shut off in the middle of her doing a transaction.
A. That's what she told me, yes.
Q. And she told you this pretty much immediately when it
happened, you said within five minutes or so.
A. Yes.
Q. And I understand you weren't there standing over her shoulder.
But when it happened, she went and found you.
A. Yes.
Q. You were the branch manager and she was notifying you of a
problem.
A. Yes.
Exhibit B, page 105 line 3-20
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Due to the malfunction of the CR machine, the amount of cash in the CR machine
did not match the computer, i.e. there was $981 extra in the machine as compared with the
computerized record. It is plaintiff’s claim in this lawsuit that Mr. Li knew at the time it occurred
on November 12, 2015 that this discrepancy was the result of the CR machine malfunction.
In fact, there can only be two possibilities for plaintiff having an extra $981 in her CR
machine. Either: (a) the CR machine malfunction caused the computerized count to be off, or (b)
plaintiff took money from a customer and did not enter it into the computer, which would have
caused that customer’s account to be short:
Q. What are the other possible reasons why there would have been
an extra $980 in the CR machine, other than as explained by that
jam?
A. Like I mentioned, there was -- it either could be the jam, her
taking more –
Q. And I'm asking you what else there could be.
A. I don't -- I think that's about it.
Exhibit B, page 114, line 11-18
Q. So it's either a jam or she took money from a customer, right?
A. Yes.
Exhibit B, page 115, line 12-14
In that regard, Mr. Li confirmed that the overage was NOT due to a customer of the
bank having been stolen from or even mistakenly shortchanged:
Q. And when you counted the money in the CR machine, you found
that the amount of cash in the machine was $980 more than should
have been there.
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A. Correct, the difference was there.
Q. And so did any customer of Chase lose any money?
A. No.
Exhibit B, page 112, line 4-10
Q. All right. So has there been a finding that Maria took $980 from
a customer?
A. If she took? I don't know if -- if there was a finding, no.
Q. Yes or no, was there –
A. No.
Exhibit B, page 113, line 18-23
As confirmed by Mr. Li, there are only two possible explanations for the $981
overage: the CR machine malfunction or theft – and Mr. Li ruled out theft. Accordingly, at the time
the CR machine malfunction occurred on November 12, 2015, and for months thereafter, plaintiff
never faced any scrutiny, and was never held to blame for anything having to do with the CR
machine malfunction. It is plaintiff’s claim in this lawsuit that right from the start plaintiff’s
manager defendant Li knew that plaintiff had done nothing wrong and did not reprimand plaintiff
or negatively impact her job in any way.
However, after plaintiff complained of discriminatory treatment due to her pregnancy
defendants went back, rewrote history, and sought to pin blame on plaintiff for the CR machine
malfunction as a pretext for plaintiff’s discriminatory termination on February 16, 2016.
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The CR machine malfunction is the only non-discriminatory ground for plaintiff’s
termination proffered by defendants:
Q. And this situation with the cash difference was the only reason
that she was fired, correct?
A. Yes, this was the reason that led to her termination.
Q. She wasn't fired because she took too long on vacation, was she?
A. No.
Q. She wasn't fired due to attendance reasons?
A. No.
Q. She wasn't fired because she took too long for lunch?
A. No.
Q. She wasn't fired for any other of Chase's policies or procedures.
A. No.
Exhibit B, page 56, line 20 - page 57 line 12
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THE SPOLIATED EVIDENCE
The evidence lost by defendants which is the subject of this motion is direct evidence
impacting plaintiff’s claims in this lawsuit as well as the false and pretextual nature of defendants’
grounds for plaintiff’s termination. The spoliated evidence consists of:
(I) an email sent by defendant William Li within one week of the CR machine
malfunction;
(II) the records related to “many” telephone conversations between Mr. Li and Chase’s
Human Resources Department; and
(III) the records related to an “investigation” into what happened with the CR machine
malfunction.
The Court is respectfully referred to plaintiff’s document demand (Exhibit C,
numbers 8 and 9) which unambiguously require the production of documents in these subject areas.
I. William Li’s Email
In his deposition defendant William Li, who is the Branch Manager and plaintiff’s
direct supervisor, admitted that soon after the CR machine malfunction he sent an email to Chase’s
Human Resources Department:
Q. How did you convey this information to Sherri? Was it an e-
mail, was it a memo, how did you do it?
A. We spoke on the phone and then she asked me to e-mail her
statement, which was this statement, what happened, what took place
that day.
Exhibit B, page 63, line 5-10
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Q. And so you provided a written description to Sherri.
A. Yes.
Q. And you said you e-mailed it to her?
A. Yes.
Exhibit B, page 65, line 16-20
Yet, there is now no trace of that email – either from Mr. Li as the sender or from
Sherri as the recipient. We submit that such a contemporaneous email from her direct manager
would support plaintiff’s claim that at the time it happened plaintiff was not held to be responsible
for the CR machine malfunction, and further, that defendants’ position in this lawsuit is an after the
fact pretextual attempt to justify plaintiff’s discriminatory termination.
This is not a situation where defendants have merely refused to produce the
document. Defendant Li testified that the email was erased:
Q. When you searched Chase's files, did you look for copies of that
e-mail?
A. I believe I did. But based on timing, I no longer had it in my e-
mail. It gets erased after a certain number of months or whatever.
Exhibit B, page 65 line 24 - page 66 line 4
We note that this lawsuit was filed in June 2016, just four months after plaintiff’s
termination, and only six months after the email was sent. We respectfully submit that it is an
impossibility that a worldwide bank with the resources of JP Morgan Chase would not have kept and
maintained, or at least had access to, such an email from November 2015, and further, that it is
unavailable from the accounts of both the sender and recipient.
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Accordingly, we submit that the email was intentionally erased because it would
conclusively show that plaintiff had not been held to be responsible for the overage due to the CR
machine malfunction, and thus that the defense proffered by defendants in this lawsuit is
demonstrably false and pretextual.
II. William Li’s Telephone Calls to Chase HR
Defendant Li testified that from November 12, 2015 (when the CR machine
malfunctioned) to the time of plaintiff’s termination in February 2016 he had numerous telephone
conversations with Chase’s HR department:
Q. And how many people did you speak to before you spoke to
Sherri?
A. One or two.
Q. How long after or how soon after November 12th, 2015, did you
speak to the first person?
A. When it occurred on November 15th, I –
Q. November 12th.
A. -- November 12th, I definitely spoke to someone in Human
Resources within the week, 'cause I knew it was a serious problem.
There's -- it involves cash, so it is serious.
Exhibit B, page 74, line 8-19
Q. So let's talk about the "who" for those phone calls. The first
phone call was somebody whom you don't know, correct?
A. Yeah, I don't know.
Q. Okay. The second phone call was also somebody you don't
know, correct?
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A. Yes.
Q. And the third phone call was with Sherri.
A. Correct.
Exhibit B, page 84, line 16-25
Q. And how many times did you speak with Sherri?
A. I don't remember how many times I spoke with her.
Q. Okay. So before the break, before you spoke with your lawyer,
you said you spoke with Sherri two times, was that incorrect?
A. I may have spoken to her many times. I'm not sure how many
times. You're trying -- you're asking me to put a number on it. I
really don't know.
Exhibit B, page 85, line 2-13
Crucially, Li testified that all of these “many” calls to Chase’s HR department were
recorded or memorialized:
Q. When you say she records it, do you mean like a tape recording?
A. No. I think she types it into a computer or something, into a
program.
Exhibit B, page 55, line 18-21
Q. Okay. But it's your understanding that, when you call HR, they
have some sort of record of that phone call, correct?
A. Yes. Yes.
Q. And whether it's a tape recording or notes, it is kept and
maintained by Chase HR.
A. Yes.
Exhibit B, page 58, line 11-18
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Q. Okay. But in any event, all of these calls with all of these
people from HR, both the people that you can't remember, and with
Sherri, all of these, to your knowledge, and your understanding of
Chase's policies and procedures, have been recorded or noted in some
way.
A. Yes.
Q. Whether it's a voice recording or something in writing, there is
a record of these things having happened.
A. Yes.
Exhibit B, page 86, line 1-12
As with the email, it is plaintiff’s position that the records of any such telephone
conversations would support plaintiff’s claim that at the time it happened her direct manager William
Li knew beyond a shadow of a doubt that plaintiff was not responsible for the CR machine
malfunction, and that her position would not be negatively impacted in any way. The records of
these calls would show that defendants’ position in this lawsuit is an after the fact attempt to justify
plaintiff’s discriminatory termination.
But again, no evidence of those calls has been produced by defendants and the
evidence suggests they were intentionally destroyed. Attached as Exhibit D is the only record of a
telephone call from Mr. Li to Chase HR regarding the CR machine malfunction. Note that it is the
record of a call that took place on January 19, 2016, a full two months after the incident. No other
records of the “many” telephone calls from Mr. Li to Chase HR has been produced by defendants
in this lawsuit.
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III. Defendants’ “Investigation”
Finally, defendant Li admitted in his deposition that the very day the CR machine
malfunction happened, November 12, 2015, he called Chase’s “Teller Recon” department to initiate
an investigation:
Q. On November 12th, 2015, did you call the back office?
A. I called teller reconciliation department.
Q. Okay.
A. To open the investigation.
Exhibit B, page 116, line 20-25
Not only have there been no records produced of that telephone call, but defendants
have also failed to produce the records of such an investigation. It is our belief that such evidence
would unequivocally show that plaintiff was not responsible for the CR machine malfunction and
the resulting overage; that she was not held to be responsible; and further, that defendants’ attempt
to hold plaintiff responsible is demonstrably false and pretextual.
DEFENDANTS SPOLIATED CRUCIAL EVIDENCE
AND THEIR ANSWER SHOULD BE STRICKEN
The spoliation of such crucial evidence can only be remedied by the striking of
defendants’ pleadings. It is one thing for plaintiff to testify about the CR machine malfunction and
that on November 12, 2015 she was acknowledged by defendants not to be at fault. Such testimony
will suffice to create a fact issue and defeat a potential motion by defendants for summary judgment,
but in the end the result will be that a jury at trial will have to negotiate through a “she said/they
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said” situation. That is a daunting prospect for an individual plaintiff going up against a behemoth
with the resources of JP Morgan Chase.
Plaintiff should not be placed in that position. The evidence discarded by defendants
as described above is “smoking gun” evidence. It could potentially resolve the case and utterly
destroy defendants’ pretextual excuse for firing plaintiff. There can be no substitute for such
evidence.
“Where appropriate, a court can impose the ultimate sanction of dismissing the action
or striking responsive pleadings, thereby rendering a judgment by default against the offending
party.” Ortega v. City of New York, 9 N.Y.3d 69, 76 (2007). “Separate and apart from CPLR §3126
sanctions is the evolving rule that a spoliator of key physical evidence is properly punished by the
striking of its pleading.” DiDomenico v. C & S Aeromatik Supplies, 682 N.Y.S.2d 452, 459 (2nd
Dept. 1998); see also Hill v. Douglas Elliman-Gibbons & Ives, 680 N.Y.S.2d 848 (1st Dept. 1998).
Even if the evidence was destroyed by defendants unintentionally or negligently,
striking of defendants’ pleadings is still the appropriate remedy. See Schimicci v. Dermpath, Inc.,
852 N.Y.S.2d 779 (2nd Dept. 2008):
Supreme Court providently exercised its discretion in granting that
branch of the defendants' cross motion which was pursuant to CPLR
3126 to strike the complaint on the ground of spoliation of evidence
based on the plaintiff's negligent failure to preserve key pieces of
evidence which, in light of the nature of the claims asserted, were
crucial to the defense of this matter.
* * *
When a party negligently loses or intentionally destroys key evidence,
thereby depriving the non-responsible party from being able to prove
its claim or defense, the responsible party may be sanctioned by the
striking of its pleading. Spoliation sanctions are not limited to cases
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where the evidence was destroyed willfully or in bad faith, since a
party's negligent loss of evidence can be just as fatal to another's
party's ability to present a case or a defense. Although courts are
reluctant to dismiss a pleading absent willful or contumacious
conduct, it may be warranted as a matter of elementary fairness.
Scarano v. Bribitzer, 2007 WL 258293, 1 (N.Y.Sup. 2007), citing, Baglio v. St. John's Queens
Hosp., 755 N.Y.S.2d 427 (2nd Dept. 2003); Madison Ave. Caviarteria v. Hartford Steam Boiler
Inspection & Ins. Co., 770 N.Y.S.2d 724 (2nd Dept. 2003); Lawson v. Aspen Ford, Inc., 791
N.Y.S.2d 119 (2nd Dept. 2005).
In Erdely v. Access Direct Systems, Inc., 847 N.Y.S.2d 108 (2nd Dept. 2007), the court
held that:
in light of the defendant's negligence in disposing of the ladder, a key
piece of evidence, at a time when it should have been obvious that the
injured plaintiff would assert a claim it is appropriate, as a sanction,
to preclude the defendant from controverting the plaintiffs’ prima
facie showing regarding the existence of a defect and the defendant's
notice of it.
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CONCLUSION
For the foregoing reasons, plaintiff’s motion to strike defendants’ pleadings should
be granted. Alternatively, defendants should be precluded from testifying about or contradicting
plaintiff’s testimony about the reason for her termination or the content of the spoliated materials.
And finally, to the extent that defendants miraculously unearth the spoliated evidence
during the pendency of this motion, we seek monetary sanctions against defendants for having
withheld the crucial evidence in the first place and wasting plaintiff’s and this Court’s time.
Dated: New York, NY
July 7, 2017
LAW OFFICES OF
JARED M. LEFKOWITZ
By______/S/_____________
Jared M. Lefkowitz
1001 Avenue of the Americas, Suite 1114
New York, NY 10018
(212) 682-1440
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FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------X MARIA URENA, Index No. 511145/2016 Plaintiff, - against - JP MORGAN CHASE, WILLIAM LI, and MELISSA MATHEY, Defendants. ------------------------------------------------------X PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE DEFENDANTS’ PLEADINGS Jared M. Lefkowitz, Esq. 1001 Avenue of the Americas, Suite 1114 New York, NY 10018 (212) 682-1440 Attorney for Plaintiff Maria Urena 1 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 Plaintiff Maria Urena, by and through her counsel Jared M. Lefkowitz, respectfully submits this memorandum of law in support of her motion: (a) to strike defendants’ pleadings and for other related relief pursuant to CPLR §3126 based upon intentional spoliation of crucial evidence in this case; and (b) to the extent that defendants “miraculously” unearth the spoliated evidence during the pendency of this motion, we seek monetary sanctions against defendants for having withheld the crucial evidence in the first place and wasting this Court’s time. FACTS Plaintiff’s primary claim in this case is gender/pregnancy discrimination in violation of the New York State Human Rights Law and the New York City Code. As set forth in the Verified Complaint (Exhibit A), as of November 2015 plaintiff was employed by defendant Chase as Lead Teller, after having worked at Chase for approximately six years and after having received several promotions. It is not disputed by plaintiff’s Branch Manager defendant William Li that on the morning of November 12, 2015 plaintiff was using the defendants’ Cash Recycler (“CR”) machine in the normal course of her duties when the CR machine malfunctioned: Q. And so you can confirm that Maria is not lying when she says there was a problem with the CR machine when she was in the middle of a transaction. You can confirm that that's true. A. Yeah, there was a jam. Q. You saw it with your own eyes. A. Yes. Q. Do you believe that Maria somehow intentionally caused the jam? A. I wouldn't know. 2 2 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 Q. Do you believe that Maria intentionally caused the jam? A. No, I don't believe she intentionally caused it. Q. Had you seen the CR machine jam like that before? A. Yes, I've seen it jam before. Exhibit B, William Li deposition, page 107 line 24 - page 108 line 16 Further, it is not disputed that plaintiff notified Mr. Li within minutes of when it happened: Q. I'm just asking you what she told you. A. Okay. Q. She told you it shut off? A. Yes. Q. And it shut off in the middle of her doing a transaction. A. That's what she told me, yes. Q. And she told you this pretty much immediately when it happened, you said within five minutes or so. A. Yes. Q. And I understand you weren't there standing over her shoulder. But when it happened, she went and found you. A. Yes. Q. You were the branch manager and she was notifying you of a problem. A. Yes. Exhibit B, page 105 line 3-20 3 3 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 Due to the malfunction of the CR machine, the amount of cash in the CR machine did not match the computer, i.e. there was $981 extra in the machine as compared with the computerized record. It is plaintiff’s claim in this lawsuit that Mr. Li knew at the time it occurred on November 12, 2015 that this discrepancy was the result of the CR machine malfunction. In fact, there can only be two possibilities for plaintiff having an extra $981 in her CR machine. Either: (a) the CR machine malfunction caused the computerized count to be off, or (b) plaintiff took money from a customer and did not enter it into the computer, which would have caused that customer’s account to be short: Q. What are the other possible reasons why there would have been an extra $980 in the CR machine, other than as explained by that jam? A. Like I mentioned, there was -- it either could be the jam, her taking more – Q. And I'm asking you what else there could be. A. I don't -- I think that's about it. Exhibit B, page 114, line 11-18 Q. So it's either a jam or she took money from a customer, right? A. Yes. Exhibit B, page 115, line 12-14 In that regard, Mr. Li confirmed that the overage was NOT due to a customer of the bank having been stolen from or even mistakenly shortchanged: Q. And when you counted the money in the CR machine, you found that the amount of cash in the machine was $980 more than should have been there. 4 4 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 A. Correct, the difference was there. Q. And so did any customer of Chase lose any money? A. No. Exhibit B, page 112, line 4-10 Q. All right. So has there been a finding that Maria took $980 from a customer? A. If she took? I don't know if -- if there was a finding, no. Q. Yes or no, was there – A. No. Exhibit B, page 113, line 18-23 As confirmed by Mr. Li, there are only two possible explanations for the $981 overage: the CR machine malfunction or theft – and Mr. Li ruled out theft. Accordingly, at the time the CR machine malfunction occurred on November 12, 2015, and for months thereafter, plaintiff never faced any scrutiny, and was never held to blame for anything having to do with the CR machine malfunction. It is plaintiff’s claim in this lawsuit that right from the start plaintiff’s manager defendant Li knew that plaintiff had done nothing wrong and did not reprimand plaintiff or negatively impact her job in any way. However, after plaintiff complained of discriminatory treatment due to her pregnancy defendants went back, rewrote history, and sought to pin blame on plaintiff for the CR machine malfunction as a pretext for plaintiff’s discriminatory termination on February 16, 2016. 5 5 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 The CR machine malfunction is the only non-discriminatory ground for plaintiff’s termination proffered by defendants: Q. And this situation with the cash difference was the only reason that she was fired, correct? A. Yes, this was the reason that led to her termination. Q. She wasn't fired because she took too long on vacation, was she? A. No. Q. She wasn't fired due to attendance reasons? A. No. Q. She wasn't fired because she took too long for lunch? A. No. Q. She wasn't fired for any other of Chase's policies or procedures. A. No. Exhibit B, page 56, line 20 - page 57 line 12 6 6 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 THE SPOLIATED EVIDENCE The evidence lost by defendants which is the subject of this motion is direct evidence impacting plaintiff’s claims in this lawsuit as well as the false and pretextual nature of defendants’ grounds for plaintiff’s termination. The spoliated evidence consists of: (I) an email sent by defendant William Li within one week of the CR machine malfunction; (II) the records related to “many” telephone conversations between Mr. Li and Chase’s Human Resources Department; and (III) the records related to an “investigation” into what happened with the CR machine malfunction. The Court is respectfully referred to plaintiff’s document demand (Exhibit C, numbers 8 and 9) which unambiguously require the production of documents in these subject areas. I. William Li’s Email In his deposition defendant William Li, who is the Branch Manager and plaintiff’s direct supervisor, admitted that soon after the CR machine malfunction he sent an email to Chase’s Human Resources Department: Q. How did you convey this information to Sherri? Was it an e- mail, was it a memo, how did you do it? A. We spoke on the phone and then she asked me to e-mail her statement, which was this statement, what happened, what took place that day. Exhibit B, page 63, line 5-10 7 7 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 Q. And so you provided a written description to Sherri. A. Yes. Q. And you said you e-mailed it to her? A. Yes. Exhibit B, page 65, line 16-20 Yet, there is now no trace of that email – either from Mr. Li as the sender or from Sherri as the recipient. We submit that such a contemporaneous email from her direct manager would support plaintiff’s claim that at the time it happened plaintiff was not held to be responsible for the CR machine malfunction, and further, that defendants’ position in this lawsuit is an after the fact pretextual attempt to justify plaintiff’s discriminatory termination. This is not a situation where defendants have merely refused to produce the document. Defendant Li testified that the email was erased: Q. When you searched Chase's files, did you look for copies of that e-mail? A. I believe I did. But based on timing, I no longer had it in my e- mail. It gets erased after a certain number of months or whatever. Exhibit B, page 65 line 24 - page 66 line 4 We note that this lawsuit was filed in June 2016, just four months after plaintiff’s termination, and only six months after the email was sent. We respectfully submit that it is an impossibility that a worldwide bank with the resources of JP Morgan Chase would not have kept and maintained, or at least had access to, such an email from November 2015, and further, that it is unavailable from the accounts of both the sender and recipient. 8 8 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 Accordingly, we submit that the email was intentionally erased because it would conclusively show that plaintiff had not been held to be responsible for the overage due to the CR machine malfunction, and thus that the defense proffered by defendants in this lawsuit is demonstrably false and pretextual. II. William Li’s Telephone Calls to Chase HR Defendant Li testified that from November 12, 2015 (when the CR machine malfunctioned) to the time of plaintiff’s termination in February 2016 he had numerous telephone conversations with Chase’s HR department: Q. And how many people did you speak to before you spoke to Sherri? A. One or two. Q. How long after or how soon after November 12th, 2015, did you speak to the first person? A. When it occurred on November 15th, I – Q. November 12th. A. -- November 12th, I definitely spoke to someone in Human Resources within the week, 'cause I knew it was a serious problem. There's -- it involves cash, so it is serious. Exhibit B, page 74, line 8-19 Q. So let's talk about the "who" for those phone calls. The first phone call was somebody whom you don't know, correct? A. Yeah, I don't know. Q. Okay. The second phone call was also somebody you don't know, correct? 9 9 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 A. Yes. Q. And the third phone call was with Sherri. A. Correct. Exhibit B, page 84, line 16-25 Q. And how many times did you speak with Sherri? A. I don't remember how many times I spoke with her. Q. Okay. So before the break, before you spoke with your lawyer, you said you spoke with Sherri two times, was that incorrect? A. I may have spoken to her many times. I'm not sure how many times. You're trying -- you're asking me to put a number on it. I really don't know. Exhibit B, page 85, line 2-13 Crucially, Li testified that all of these “many” calls to Chase’s HR department were recorded or memorialized: Q. When you say she records it, do you mean like a tape recording? A. No. I think she types it into a computer or something, into a program. Exhibit B, page 55, line 18-21 Q. Okay. But it's your understanding that, when you call HR, they have some sort of record of that phone call, correct? A. Yes. Yes. Q. And whether it's a tape recording or notes, it is kept and maintained by Chase HR. A. Yes. Exhibit B, page 58, line 11-18 10 10 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 Q. Okay. But in any event, all of these calls with all of these people from HR, both the people that you can't remember, and with Sherri, all of these, to your knowledge, and your understanding of Chase's policies and procedures, have been recorded or noted in some way. A. Yes. Q. Whether it's a voice recording or something in writing, there is a record of these things having happened. A. Yes. Exhibit B, page 86, line 1-12 As with the email, it is plaintiff’s position that the records of any such telephone conversations would support plaintiff’s claim that at the time it happened her direct manager William Li knew beyond a shadow of a doubt that plaintiff was not responsible for the CR machine malfunction, and that her position would not be negatively impacted in any way. The records of these calls would show that defendants’ position in this lawsuit is an after the fact attempt to justify plaintiff’s discriminatory termination. But again, no evidence of those calls has been produced by defendants and the evidence suggests they were intentionally destroyed. Attached as Exhibit D is the only record of a telephone call from Mr. Li to Chase HR regarding the CR machine malfunction. Note that it is the record of a call that took place on January 19, 2016, a full two months after the incident. No other records of the “many” telephone calls from Mr. Li to Chase HR has been produced by defendants in this lawsuit. 11 11 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 III. Defendants’ “Investigation” Finally, defendant Li admitted in his deposition that the very day the CR machine malfunction happened, November 12, 2015, he called Chase’s “Teller Recon” department to initiate an investigation: Q. On November 12th, 2015, did you call the back office? A. I called teller reconciliation department. Q. Okay. A. To open the investigation. Exhibit B, page 116, line 20-25 Not only have there been no records produced of that telephone call, but defendants have also failed to produce the records of such an investigation. It is our belief that such evidence would unequivocally show that plaintiff was not responsible for the CR machine malfunction and the resulting overage; that she was not held to be responsible; and further, that defendants’ attempt to hold plaintiff responsible is demonstrably false and pretextual. DEFENDANTS SPOLIATED CRUCIAL EVIDENCE AND THEIR ANSWER SHOULD BE STRICKEN The spoliation of such crucial evidence can only be remedied by the striking of defendants’ pleadings. It is one thing for plaintiff to testify about the CR machine malfunction and that on November 12, 2015 she was acknowledged by defendants not to be at fault. Such testimony will suffice to create a fact issue and defeat a potential motion by defendants for summary judgment, but in the end the result will be that a jury at trial will have to negotiate through a “she said/they 12 12 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 said” situation. That is a daunting prospect for an individual plaintiff going up against a behemoth with the resources of JP Morgan Chase. Plaintiff should not be placed in that position. The evidence discarded by defendants as described above is “smoking gun” evidence. It could potentially resolve the case and utterly destroy defendants’ pretextual excuse for firing plaintiff. There can be no substitute for such evidence. “Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party.” Ortega v. City of New York, 9 N.Y.3d 69, 76 (2007). “Separate and apart from CPLR §3126 sanctions is the evolving rule that a spoliator of key physical evidence is properly punished by the striking of its pleading.” DiDomenico v. C & S Aeromatik Supplies, 682 N.Y.S.2d 452, 459 (2nd Dept. 1998); see also Hill v. Douglas Elliman-Gibbons & Ives, 680 N.Y.S.2d 848 (1st Dept. 1998). Even if the evidence was destroyed by defendants unintentionally or negligently, striking of defendants’ pleadings is still the appropriate remedy. See Schimicci v. Dermpath, Inc., 852 N.Y.S.2d 779 (2nd Dept. 2008): Supreme Court providently exercised its discretion in granting that branch of the defendants' cross motion which was pursuant to CPLR 3126 to strike the complaint on the ground of spoliation of evidence based on the plaintiff's negligent failure to preserve key pieces of evidence which, in light of the nature of the claims asserted, were crucial to the defense of this matter. * * * When a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading. Spoliation sanctions are not limited to cases 13 13 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as fatal to another's party's ability to present a case or a defense. Although courts are reluctant to dismiss a pleading absent willful or contumacious conduct, it may be warranted as a matter of elementary fairness. Scarano v. Bribitzer, 2007 WL 258293, 1 (N.Y.Sup. 2007), citing, Baglio v. St. John's Queens Hosp., 755 N.Y.S.2d 427 (2nd Dept. 2003); Madison Ave. Caviarteria v. Hartford Steam Boiler Inspection & Ins. Co., 770 N.Y.S.2d 724 (2nd Dept. 2003); Lawson v. Aspen Ford, Inc., 791 N.Y.S.2d 119 (2nd Dept. 2005). In Erdely v. Access Direct Systems, Inc., 847 N.Y.S.2d 108 (2nd Dept. 2007), the court held that: in light of the defendant's negligence in disposing of the ladder, a key piece of evidence, at a time when it should have been obvious that the injured plaintiff would assert a claim it is appropriate, as a sanction, to preclude the defendant from controverting the plaintiffs’ prima facie showing regarding the existence of a defect and the defendant's notice of it. 14 14 of 15 FILED: KINGS COUNTY CLERK 07/07/2017 02:43 PM INDEX NO. 511145/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/07/2017 CONCLUSION For the foregoing reasons, plaintiff’s motion to strike defendants’ pleadings should be granted. Alternatively, defendants should be precluded from testifying about or contradicting plaintiff’s testimony about the reason for her termination or the content of the spoliated materials. And finally, to the extent that defendants miraculously unearth the spoliated evidence during the pendency of this motion, we seek monetary sanctions against defendants for having withheld the crucial evidence in the first place and wasting plaintiff’s and this Court’s time. Dated: New York, NY July 7, 2017 LAW OFFICES OF JARED M. LEFKOWITZ By______/S/_____________ Jared M. Lefkowitz 1001 Avenue of the Americas, Suite 1114 New York, NY 10018 (212) 682-1440 15 15 of 15