On December 28, 2005, Marvin Kessler, as owner of the vessel M/V Noteworthy (“Petitioner”) filed an action in this Court seeking an exoneration from or limitation of liability pursuant to 42 U.S.C. §§ 181–189, et seq. This admiralty action arises out of a November 7, 2005 fire which originated aboard the M/V Noteworthy (the “Vessel”) while it was docked at the Jude Thaddeus Glen Cove Marina (the “Marina”). The Vessel was owned by Petitioner Marvin Kessler. Petitioner and his marine insurer, ACE American Insurance Company (“ACE”) move the Court for permission to file a counterclaim against the Marina for the loss of the Vessel [DE 56]. The Marina opposes the motion on the grounds that Petitioner's request is both untimely and improper pursuant to Federal Rule of Civil Procedure 15(a) [DE 59]. No other claimants oppose the proposed amendment. See DE 56.

*4 Also before the Court are competing motions for sanctions based upon allegations of spoliation of evidence. Claimant Continental Casualty Company, as subrogee of Howard Hirschmann (“Continental”) filed a motion seeking sanctions for spoliation of evidence. Continental argues that Petitioner disposed of the remains of the Vessel prior to a meaningful inspection by all interested parties. As a sanction, Continental seeks an order finding that (1) the Vessel was unseaworthy; (2) the unseaworthiness was the cause of the fire; and (3) Petitioner had knowledge or privity of the fire-causing unseaworthy condition [DE 72]. Petitioner has opposed that motion on the grounds that the remains of the Vessel were destroyed without Petitioner's knowledge and the claimants were not prejudiced by the destruction of the remains of the Vessel because various inspections had already taken place [DE 79–80].

Petitioner also filed a motion to dismiss the Marina's claim for damages as a sanction for the Marina's spoliation of evidence [DE 66]. Petitioner claims that the Marina destroyed a critical videotape showing the main dock where the Vessel was berthed just prior to the fire. The Marina opposes that motion on the grounds that, inter alia, Petitioner has not established that the data was lost or destroyed and that the Marina had no obligation to preserve the surveillance footage [DE 69].

Judge Feuerstein referred these three motions to me for a Report and Recommendation and my findings are set forth below..

On November 7, 2005 a fire originated aboard the Vessel and spread to the Marina's dock and several other vessels berthed nearby, resulting in property damage and losses valued in excess of $1,000,000. The Vessel burned and sank. It was hauled out of the water two days later. Declaration of Raymond J. Of (“Of Decl.”) ¶ 3. The Vessel was almost completely destroyed by the fire and only the charred wreckage of the hull remained. Id.

In the days following the fire, an investigation was conducted by Nassau County Fire Marshal Gene Pietzak. In addition to the Fire Marshal's investigation, follow-up cause and origin investigations were conducted in November and December 2005. Inspections were conducted on November 14, 23, 29, 2005 as well as December 1 and 8, 2005. Claimants' experts William Nolan, Joseph Banhanan, Paul Tobin and William Hayden participated in those inspections along with Raymond Of, Petitioner's fire expert. Petitioner's Mem at 8. Hundreds of photographs were taken by these experts and certain evidence selected by the experts was preserved. Id. at 12. During the five inspections, claimants' experts had unrestricted access to the hull.

On December 28, 2005, Petitioner initiated this proceeding seeking exoneration from or limitation of liability. The Vessel was destroyed in April 2006. The claimants were not provided any notice of the intent to destroy the Vessel. The claimants learned that the Noteworthy had been destroyed on May 10, 2007.

*5 Supervision of discovery in this matter was referred to me by Judge Feuerstein on March 14, 2007. Following a status conference held in April 2007, I issued a lengthy order setting forth the deadlines for the remainder of discovery [DE 33]. All fact depositions were to be completed by June 11, 2007 and all document discovery was to be completed by May 25, 2007. That deadline was subsequently extended to August 13, 2007, solely to allow the parties to explore the circumstances surrounding the destruction of the remains of the Vessel. Petitioner's motion to assert a counterclaim against the Marina was ultimately filed in October 2007. However, Petitioner had previously raised the possibility of asserting such claim at the April 2007 conference, prior to the close of discovery.

Fed.R.Civ.P. 15(a) generally governs the amendment of pleadings and provides that

Fed.R.Civ.P. 15(a); see also Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 259 (2d Cir.2002); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). Leave to amend should be denied only where there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603–04 (2d Cir.2005); Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir.2002). “The party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial.” Fariello v. Campbell, 860 F.Supp. 54, 70 (E.D.N.Y.1994); see also European Cmty. v. RJR Nabisco, Inc., 150 F.Supp.2d 456, 502–03 (E.D.N.Y.2001); Saxholm AS v. Dynal, Inc., 938 F.Supp. 120, 123 (E.D.N.Y.1996). The opposing party likewise bears the burden of establishing that an amendment would be futile. See Blaskiewicz v. County of Suffolk, 29 F.Supp.2d 134, 137–8 (E.D.N.Y.1998) (citing Harrison v. NBD Inc., 990 F.Supp. 179, 185 (E.D.N.Y.1998)).

The text of Rule 15 makes it clear that the Court should not grant permission to amend automatically. Rather, amendment is proper only “when justice so requires.” Id. (citing 6 Wright & Miller, Federal Practice and Procedure, § 1487 (1971)). In this regard, however, the Supreme Court has established that “[o]utright refusal to grant ... leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. at 182.

*6 Petitioner and his marine insurer ACE seek leave to assert a counterclaim against the Marina for the loss of the Vessel. Petitioner has failed to attached a draft of the proposed pleading to his motion. “In order to meet the requirements of particularity in a motion to amend, ‘a complete copy of the proposed amended complaint must accompany the motion so that both the Court and opposing parties can understand the exact changes sought.” ’ Zito v. Leasecomm Corp., No. 02 Civ. 8072, 2004 WL 2211650, at *25 (S.D.N.Y. Sept.30, 2004) (quoting Smith v. Planas, 151 F.R.D. 547, 550 (S.D.N.Y.1993)); see also Segatt v. GSI Holding Corp., No. 07–11413, 2008 WL 4865033, at *4 (S.D.N.Y. Nov.3, 2008); Team Air Express, Inc. v. A Hefco Tech., Inc., No. 06–2742, 2008 WL 3165892, at *10 (E.D.N.Y. Aug.6, 2008). The failure to attache a proposed amended complaint to the moion to amend “is not fatal where there is no undue prejudice to defendant.” Fei v. WestLB AG, No. 07 Civ. 8785, 2008 WL 594768, at *2 (S.D.N.Y. Mar.5, 2008); Christiana Gen. Ins. Corp. of N.Y. v. Great Am. Ins. Co., 745 F.Supp. 150, 164 (S.D.N.Y.1990). Here, the motion adequately details the facts and law upon which Petitioner is basing the proposed amendment, thus allowing the Marina a meaningful opportunity to oppose the motion. Accordingly, I respectfully recommend to Judge Feuerstein that Petitioner's motion should not be rejected for his failure to attach the proposed amended pleading.

The Marina's challenge to Petitioner's proposed amendment is addressed to three of the factors identified above: undue delay in seeking to amend, undue prejudice and futility of the amendment.

According to the Marina, Petitioner “is guilty of undue delay in seeking to amend its limitation complaint” because the motion was filed two years after filing of the action and after the close of fact discovery. The Marina also argues that it will be unduly prejudiced if this amendment is allowed because fact discovery has already closed. Petitioner, on the other hand, maintains that the motion to amend is timely because it is based upon information revealed through discovery as late as March 30, 2007, no trial date is set, and summary judgment motions have not been filed. Additionally, Petitioner contends, the parties have already conducted discovery on the issues relating to the proposed amendment.

“The factors of delay and prejudice are related.” In re Fosamax Prod. Liab. Litig., Nos. 06–MD–1789, 06–MD–9449, 2009 WL 137087, at * 4 (S.D.N.Y. Jan. 21, 2009). “Mere delay, ... absent a showing of bad faith or undue prejudice, does not provide a basis for the district court to deny the right to amend.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008); State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981) (mere delay without demonstration of bad faith or undue prejudice insufficient to defeat motion to amend). “The longer the period of unexplained delay, the less will be required of the non-moving party in terms of a showing of prejudice.” Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir.1983); see also Phaneuf v. Tenneco, Inc., 938 F.Supp. 112, 115 (N.D.N.Y.1996) (“[i]n instances where ... a considerable amount of time has passed between filing the complaint and the motion to amend, courts have placed the burden upon the movant to show some valid reason for his or her neglect and delay”) (internal quotation marks omitted) (quoting Sanders v. Thrall Car Mfg. Co., 582 F.Supp. 945, 952 (S.D.N.Y.1983), aff'd, 730 F.2d 910 (2d Cir.1984)).

*7 When considering whether the defendant, or here, the claimants, will be unduly prejudiced by the proposed amendment, “the Court must consider whether the proposed amendment to the pleadings would ‘(1) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (2) significantly delay the resolution of the dispute; or (3) prevent the plaintiff from bringing a timely action in another jurisdiction.” ’ NAS Elec., Inc. v. Transtech Elec. PTE Ltd., 262 F.Supp.2d 134, 151 (S.D.N.Y.2003) (quoting Block v. First Blood Assoc., 988 F.2d 344, 350 (2d Cir.1993)); see also United States ex rel. Maritime Admin. v. Continental Ill. Nat'l Bank and Trust Co. of Chicago, 889 F.2d 1248, 1255 (2d Cir.1989) (burden of additional discovery alone insufficient to warrant denial of motion to amend); Tailored Lighting, Inc. v. Osram Sylvania Prod., Inc., No. 04–6435, 2009 WL 367584, at *7 (W.D.N.Y.Feb.13, 2009) (“[a]lthough the discovery period in this case has ended, any additional discovery with respect to the subject petition should be reasonably narrow in scope and not unduly burdensome”).

In light of the extensive discovery conducted on the issue of the Marina's potential liability for the fire as well as the fact that summary judgment motions have not been made and no trial date has been set, I find that allowing the proposed counterclaim will not unduly prejudice the Marina—particularly since the Marina was on notice that Petitioner intended to assert the counterclaim as early as April 2007, well before the close of discovery. See, e.g., Jackson v. Roslyn Bd. of Educ., No. 05–3102, 2009 WL 303687, at *4 (E.D.N.Y. Jan.24, 2009) (allowing amendment where discovery only recently completed, new claim not likely to require “extensive new discovery” and summary judgment not yet filed).

Next, the Marina argues that Petitioner has failed to allege facts sufficient to support a counterclaim against the Marina—i.e., the proposed amendment would be futile. A proposed amendment is futile when it fails to state a claim upon which relief can be granted. Dougherty, 282 F.3d at 88; Health–Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990). A determination of futility is governed by the same standards as a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Allen v. WestPoint–Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991). Under Rule 12(b)(6), the court must accept as true all “the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff.” Randolph–Rand Corp. of N.Y. v. Tidy Handbags, Inc., No. 96 CV 1829, 2001 WL 1286989, at * 5 (S.D.N.Y. Oct.24, 2001); Bolt Elec. Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). The Supreme Court has held that “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Moreover, “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id.; see also Iqbal v. Hasty, 490 F.3d 143, 157–58 (2d Cir.2007) (concluding that Twombly requires a “flexible plausibility standard, which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible” (internal quotation marks omitted)).

*8 Importantly,

Hoffman v. Wisner Classic Mfg., 927 F.Supp. 67, 70 (E.D.N.Y.1996).

Furthermore, “under the modern rules of pleading, a plaintiff need only provide ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ ... and that ‘[a]ll pleadings shall be so construed as to do substantial justice.” ’ Id. (citing Fed.R.Civ.P. 8(a)(2)). Rule 11 governs the pleadings and is a procedural safeguard which requires an attorney to sign every pleading or other paper filed with the court to ensure that the allegations and claims contained therein are valid. See, e.g., Resqnet.com, Inc. v. Lansa, Inc., 382 F.Supp.2d 424, 452 (S.D.N.Y.2005); see also Fed.R.Civ.P. 11(a). In signing the pleading, the attorney certifies that to the best of his knowledge, information, and belief, formed after a reasonable inquiry under the circumstances, that (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay; (2) the claims, defenses, and other legal contentions therein are warranted by existing law; (3) the allegations and other factual contentions have evidentiary support or, are likely to have evidentiary support after a reasonable opportunity for investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. See, generally, Fed.R.Civ.P. 11(b).

Petitioner asserts that Wes Weincierz, the Marina's head mechanic, started the fire at issue by either dropping or leaving a lit cigarette on the Vessel. In support of that claim, Petitioner alleges that Weincierz was requested to change the oil filters on the Vessel on the day of the fire, that Weincierz is a regular smoker and was seen smoking a cigarette on the Marina's main dock sometime before the fire, and that the fire started on the Vessel's starboard side in the interior cabin area, which is in proximity to where Petitioner had left the oil filters to be retrieved by the mechanic. Petitioner acknowledges that Weincierz has denied boarding the Vessel that day, but points to a number of inconsistencies in his testimony which, according to Petitioner, impact his credibility. The Marina argues that this claim as asserted could not withstand summary judgment. However, that is not the standard by which motions to amend the pleadings are evaluated. I must consider whether, accepting Petitioner's allegations as true, he has alleged enough to state a claim for negligence.

*9 To state a claim for negligence under New York law, Petitioner must allege: “1) the existence of a duty flowing from defendant to plaintiff; 2) a breach of this duty; 3) a reasonably close causal connection between the contact and the resulting injury; and 4) actual loss, harm or damage.” Integrated Waste Services, Inc. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 299 (2d Cir.1996) (quoting Febesh v. Elcejay Inn Corp., 157 A.D.2d 102, 555 N.Y.S.2d 46, 47 (N.Y.App.Div.1990)). I find that Petitioner has alleged enough to satisfy this standard and further note that such finding should not be construed as any assessment of the merits of the allegations. Accordingly, I respectfully recommend to Judge Feuerstein that Petitioner's motion for leave to assert a counterclaim for negligence against the Marina be granted.

“Spoliation is ‘the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” ’ In re WRT Energy Sec. Litig., 246 F.R.D. 185, 194 (S.D.N.Y.2007) (quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2d Cir.2001)). A party seeking sanctions for spoliation must show:

Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002) (quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 107–12 (2d Cir.2001)). “A party seeking sanctions for spoliation has the burden of proving that the alleged spoliator had an obligation to preserve evidence, acted culpably in destroying it, and that the evidence would have been relevant to the aggrieved party's case.” Ramirez v. Pride Develop. and Const., 244 F.R.D. 162 (E.D.N.Y.2007).

The court has the inherent power to impose sanctions for the spoliation of evidence, even where there has been no explicit order requiring the production of the missing evidence. See Residential Funding, 306 F.3d. at 106–07 (“[e]ven in the absence of a discovery order, a court may impose sanctions on a party for misconduct in discovery under its inherent power to manage its own affairs”).

Continental has moved the Court for an order denying Petitioner's exoneration from or limitation of liability for intentional spoliation of evidence. Petitioner commenced this action seeking Exoneration from or Limitation of Liability from the destruction of the Vessel under the Limitation of Liability Act, 46 U.S.C. §§ 181–189, revised at 46 U.S.C. §§ 30505–13 et. seq. Under the Limitation of Liability Act, a vessel owner's liability is limited to “the value of the vessel and pending freight” for “any loss, damage, or injury by collision ... done, occasioned, or incurred without the privity or knowledge of the owner.” Id. § 30505(b). Generally, a shipowner in navigable waters owes a “duty to exercise reasonable care towards those lawfully aboard the vessel who are not members of the crew.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). The Limitation of Liability Act, however, “alters the normal rules of vicarious liability” by allowing a vessel owner to escape liability for the negligent acts of the master or crew members in the absence of privity or knowledge. See In re City of New York, 522 F.3d 279, 283–84 (2d Cir.2008); see also Wyandotte Transp. Co. v. U.S., 389 U.S. 191, 205, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967) (liability will be limited only if the vessel owner did not have knowledge or access to the knowledge of the act or damage); The 84—H, 296 F. 427, 431 (2d Cir.1924) (restricting a shipowner's liability “for acts done without his privity or knowledge, while [he remains] liable for own fault [and] neglect”), cert. denied, 264 U.S. 596, 44 S.Ct. 454, 68 L.Ed. 867 (1924); Tug Ocean Prince, Inc. v. U.S., 584 F.2d 1151, 1155, 1159 (2d Cir.1978), cert. denied., 440 U.S. 959, 99 S.Ct. 1499, 59 L.Ed.2d 772 (1979).

*10 Limitation of Liability proceedings require a two-prong, burden-shifting analysis. First, a claimant must prove that negligence or unseaworthiness[1] caused the accident. See, e.g., EAC Timberlane v. Pisces, Ltd., 745 F.2d 715, 720 (1st Cir.1984); In re Brasea, Inc., 583 F.2d 736, 738 (5th Cir.1978). Second, if the claimant establishes either condition, the vessel owner must prove that he lacked the knowledge or was not privy to the knowledge of the specific negligent or unseaworthy condition to successfully limit his liability. Coryell v. Phipps, 317 U.S. 406, 409, 63 S.Ct. 291, 87 L.Ed. 363 (1943); Tug Ocean Prince, Inc., 584 F.2d at 1155 (“[i]t is the owner's duty to use due and proper care to provide a competent master and crew and to see that the ship is seaworthy; any loss occurring by reason of fault or neglect in these particulars is within his privity”); In Re Oswego Barge Corp., 439 F.Supp. 312, 318 (N.D.N.Y.1977) (the purpose of establishing “privity” and “knowledge” is to “insure that [a] vessel owner who had contributed to loss, or had knowledge of fact which could have been acted upon to prevent loss, could not limit his liability”). The requisite privity or knowledge for an individual owner must be actual and often involves the owner's personal participation in the resultant negligent or unseaworthy condition. Coryell, 317 U.S. at 411–412 (noting that constructive knowledge would be insufficient to establish privity or knowledge). While mere negligence has been excused, a vessel owner will be liable for what he knew or should have known regarding a certain negligent or unseaworthy condition. See, e.g., Deslions v. La Compagnie Generale Transatlanique, 210 U.S. 95, 122, 28 S.Ct. 664, 52 L.Ed. 973 (1908) (“mere negligence, pure and simple, in and of itself does not necessarily establish the existence on the part of the owner of a vessel of privity and knowledge within the meaning of the statute”); New York & Cuba Mail S.S. Co. v. Continental Ins. Co., 117 F.2d 404 (2d Cir.), cert. denied, 313 U.S. 580, 61 S.Ct. 1103, 85 L.Ed. 1537 (1941) (vessel owners will be liable for what they “could have seen if they had looked”); In re Sea Wolf Marine Towing & Transp., Inc. ., No. 03–5578, 2007 WL 3340931, at *3 (S.D.N.Y. Nov.6, 2007). The Act applies to pleasure boats as well as commercial vessels. See In re Guglielmo, 897 F.2d 58, 59–60 (2d Cir.1990); Grant v. Le Blanc, Nos. 96–CV–582, 95–CV–1417, 1996 WL 679730, at *1 (N.D.N.Y. Sept.25, 1996).

Continental seeks an order finding that (1) the Vessel was unseaworthy; (2) the unseaworthiness was the cause of the fire; and (3) Petitioner had knowledge or privity of the fire-causing unseaworthy condition. An order of this type is the equivalent of a dismissal of his claim which would allow Continentals to seek recovery of damages from Petitioner [DE 72]. Petitioner has opposed the motion for sanctions on the grounds that the remains of the Vessel were destroyed without Petitioner's knowledge or consent and Continental and the other claimants were not prejudiced by the destruction of the remains of the Vessel because multiple inspections had already taken place [DE 79–80].

*11 The fire occurred on November 7, 2005. Written notice to preserve the Vessel was served on Petitioner on November 16, 2005. The Vessel was inspected multiple times in November and December 2005; photographs were taken and evidence was gathered. The Second Circuit has held that “[t]he obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Fujitsu Ltd. v. Federal Exp. Corp., 247 F.3d 423, 436 (2d Cir.2001) (citing Kronisch, 150 F.3d at 126). There can be no doubt that Petitioner was obligated to preserve the remains of the Vessel. The question is whether Petitioner can be held responsible for the destruction of the Vessel by another.

According to Continental, the Vessel was intentionally destroyed by Petitioner. However, the evidence before the Court indicates that ACE (Petitioner's marine insurer) gave Cooper Capital Specialty Salvage, Inc. (“Cooper”), an independent salvage company, a clear instruction that the Vessel was to be held. As discussed further below, Cooper states that it was never instructed by ACE or anyone else to destroy the Vessel. Cooper further asserts that one of its employees failed to see the hold order when ordering the destruction. Continental argues that the destruction was ordered by Petitioner's agents—Cooper and Ronald Alcus, ACE's investigator, and that Petitioner should be held responsible for Cooper's destruction of the remains of the Vessel. However, Continental has failed to demonstrate that Cooper was under the control of Petitioner and has presented no proof that Alcus ordered the disposal.

“To establish an agency relationship under New York law, a party must show ‘the manifestation by the principal that the agent shall act for him [;] the agent's acceptance of the undertaking[;] and the understanding of the parties that the principal is to be in control of the undertaking.’ Whether an agency relationship exists under this standard is a mixed question of law and fact” Hughes v. Lillian Goldman Family, LLC, 153 F.Supp.2d 435 (S.D.N.Y.2001) (quoting Cabrera v. Jakabovitz, 24 F.3d 372, 386 (2d Cir.1994) (quoting Restatement (Second) of Agency § 1 cmt. b (1958)); see also 2A N.Y. Juris.2d, Agency § 2 (1998)). “An essential characteristic of an agency relationship is that the agent acts subject to the principal's direction and control.” In re Shulman Transport Enterprises, Inc., 744 F.2d 293, 295 (2d Cir.1984). In contrast, an independent contractor is “ ‘one who, in exercising an independent employment, contracts to do certain work according to his own methods, and without being subject to the control of his employer, except as to the product or result of his work.’ ” Murray Hill Films, Inc. v. Martinair Holland, N.V., 1987 WL 14918, * 3, 1987 U.S. Dist. LEXIS 6500, *7–* 8 (S.D.N.Y. July 17, 1987) (quoting Dorkin v. American Express Co., 74 Misc.2d 673, 345 N.Y.S.2d 891, 894 (N.Y.Sup.Ct.1973), aff'd, 43 A.D.2d 877, 351 N.Y.S.2d 190 (N.Y.App.Div.1974)); accord Spiro v. Pence, 149 Misc.2d 613, 566 N.Y.S.2d 1010, 1012 (N.Y.City Ct.1991).

*12 ACE was the insurer of Petitioner's Vessel. On December 21, 2005, Kristen Swingle, Senior Claims representative at ACE, completed a Vessel Assignment Sheet pursuant to which she assigned the remains of the Vessel to Cooper, the salvage company. Swingle Decl. ¶ 4. Cooper is an independent company that contracted with ACE. Id. Cooper does not have an exclusive relationship with ACE. Milardo Decl. ¶ 2. According to Swingle, Cooper was advised that the Vessel was “burned to the water line and sank. Vessel is being moved from Brewers to storage facility and needs to be held.” Swingle Decl. ¶ 4. Ace paid for the storage of the Vessel for six months, commencing on December 29, 2005, at a cost of $3,497.73 and the storage agreement was to be renewed after that period if necessary. Id. ¶ 5, 566 N.Y.S.2d 1010. According to Swingle, she never authorized Cooper to dispose of the Vessel. Id. at 8, 566 N.Y.S.2d 1010.

Ronald Alcus is a marine surveyor hired by ACE to investigate a fire at the Marina. Alcus Decl. ¶ 1. He was asked to provide a post-casualty market value for the remains of the Vessel. Id. ¶ 3, 566 N.Y.S.2d 1010. Additionally, Alcus gave a briefing to claimants' experts on November 14, 2005 concerning the fire, the condition of the Vessel before and after the fire, and the statement Petitioner Kessler provided to the Fire Marshal. Id. ¶ 7, 566 N.Y.S.2d 1010. Alcus arranged to have the Vessel stored first at Brewer's Yacht Yard and then ultimately arranged for the Vessel to be moved to Crows Nest Marina for long term storage. Id. ¶ 4, 566 N.Y.S.2d 1010. According to Alcus, he told a representative of Cooper that it was necessary to contact ACE's attorney “before selling or disposing of the Vessel.” Id. ¶ 6, 566 N.Y.S.2d 1010. Alcus also claims that he did not authorize anyone to dispose of the Vessel. Id. ¶ 8, 566 N.Y.S.2d 1010.

Continental relies on a letter from Cooper to Petitioner Kessler to establish an agency relationship between Petitioner, ACE, and Cooper. The letter relied upon so heavily is nothing more than a transmittal letter asking Kessler to execute certain documents relating to the deletion of the Vessel from the U.S. Coast Guard Registry. Nothing in this letter indicates that Cooper was “acting subject to the principal's direction and control” In re Shulman Transport Enterprises, Inc., 744 F.2d at 295, as opposed to acting as an independent contractor exercising an independent “employment contract to do certain work according to his own methods, and without being subject to the control of his employer, except as to the product or result of his work.” Murray Hill Films, Inc., 1987 WL 14918, at * 3. The Power of Attorney referenced by Continental was by its terms a limited Power of Attorney, authorizing Cooper to file the necessary paper work. At this point in the proceedings, Continental has not established that Cooper was acting at the direction of Petitioner when it ordered the destruction of the Vessel.

Absent such a finding, I cannot recommend the drastic sanction sought by Continental. The testimony of Cooper, provided by Ron Milardo, the owner of Cooper, confirms Swingle's representation that ACE never instructed Cooper to dispose of the Vessel. Rather, Milardo maintains that one of his assistants did not see the notation on the Vessel Assignment Sheet—i.e., “needs to be held”—and instructed the Crow's Nest Marina to dispose of the Vessel. Milardo Decl. ¶ 7. To refute Cooper's unequivocal statement, Continental points to several entries in what appears to be a written transcription of a case activity/ call log produced by Cooper, attached as Exhibit 0 to the Tobin Affirmation, to support its position that ACE consented to the disposal of the Vessel. Continental points to a call from “Ron Alcus regarding getting disposal quotes for the boat as he was getting others, as well.” However, the fourth entry in this log states “Ron Alcus responded with location of Vessel, contact person, and lawyers information to contact prior to disposal.” There is no entry in the log indicating that any lawyers, or anyone else for that matter, were contacted prior to Cooper's instruction to the Crow's Nest Marina ordering the disposal of the Vessel. Thus, this call log supports the statement made by Ron Milardo that ACE was not notified of Cooper's plan to dispose of the remains of the vessel.[2]

*13 Next, Continental argues that a log entry in May 2006 shows that Cooper e-mailed ACE concerning payment for disposal of the Vessel, indicating that ACE agreed to pay for the disposal. An invoice was sent to Swingle in May 2006 stating that a “Salvage expense is due to Crow's Nest Marina in the amount of $6,300.50.” Contrary to Continental's assertion, however, this invoice does not signal that the Vessel had been destroyed. Additionally, the invoice sent to Swingle does not attach the invoice from Crow's Nest Marina which did indicate that the Vessel had been destroyed. Since ACE was paying Cooper for the storage of the Vessel, this invoice alone does not demonstrate that ACE approved of the disposal of the Vessel.

Continental has failed to establish the Petitioner breached his duty to preserve the evidence in question. “No unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for.” Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir.1995).

“Even where the preservation obligation has been breached, sanctions will only be warranted if the party responsible for the loss had a sufficiently culpable state of mind.” In re WRT, 246 F.R.D. at 195. “Negligence alone is sufficient to justify the imposition of some sanction.” Id. at 196.

Continental contends that Petitioner intentionally destroyed the remains of the Vessel, and therefore the harshest remedy available—dismissal—is appropriate. As discussed above, Continental has not demonstrated that Petitioner can be held responsible for the destruction of the Vessel. Unlike the Petitioner in In re Wechsler, 121 F.Supp.2d 404 (D.Del.2000), Petitioner made the Vessel available for inspection by each of claimants' experts, and then instructed the salvage company to hold the Vessel. By contrast, in Wechsler, the court found Petitioners' representatives put into place “numerous hurdles” in an attempt to prevent the other parties from inspecting the M/V ATLAS. Id. at 416. The court found significant the fact that one of the claimants' experts offered to pay for the continued storage of the hull, which offer was refused, and the vessel was “crunched” over his objection. Id. at 420. Additionally, the court relied heavily on the fact that the expert was present at the time of the destruction and pleaded with the salvage company to release the boat to him, then and there, and he would pay all costs. The court observed that the only reason it could “discern for destroying the vessel under these circumstances would be to prevent the claimants from inspecting the ship and possibly discovering the cause and origin of the fire.” Id. No such facts are presented here.

The fire aboard the M/V NOTEWORTHY occurred in November 2005, the inspections occurred in November and December 2005, and the Vessel was transferred to a long term storage facility with instructions that it was to be held. No one requested the opportunity to re-inspect the Vessel until April 2007, on the eve of the close of discovery—16 months after the fire—and after the deadline for claimants to respond to Petitioner's “cause of fire” interrogatory. According to Petitioner, only then did he learn that the Vessel had been destroyed. Under these circumstances, I find that claimants have not established that the Vessel was destroyed with a “culpable state of mind” on the part of Petitioner.

*14 The final element that must be demonstrated to warrant the imposition of the sanctions is relevance. “A moving party may obtain modest sanctions by showing only that the lost evidence was pertinent to its claims. However, where more severe sanctions are at issue, the movant must demonstrate that the lost information would have been favorable to it.” In re WRT, 246 F.R.D. at 197. Obviously, the Vessel is relevant to the parties' claim. The question here is whether the inspections conducted by the experts prior to the destruction of the Vessel presented an adequate and meaningful opportunity to inspect the remains of the Vessel. I conclude that, given the post-fire condition of the Vessel, as pointed out by the experts who conducted the investigations, very little, if anything, could have been gained by additional inspections.

In Thiele v. Oddy's Auto and Marine, Inc., 906 F.Supp. 158, 162 (W.D.N.Y.1995), the Court held that imposition of a sanction for spoliation was improper where the defendant and its representatives had the opportunity to inspect the evidence at the same time it was inspected by plaintiff. The court noted that “the evidence destroyed by Plaintiff subsequent to defendants' inspection can be brought up in the context of the admissibility of evidence or to impeach the testimony of witnesses at trial.” Id.; see also Baliotis v. McNeil, 870 F.Supp. 1285, 1290 (M.D.Pa.1994) (noting that “[t]he scope of the duty to preserve evidence is not boundless,” but requires, at a minimum, that the defendant be provided an opportunity for inspection). The court in Thiele distinguished between the defendants who had an opportunity to examine the boat before it was destroyed and those who did not.

Continental seeks to avoid this result by arguing that new evidence came to light during the course of Petitioner's deposition which might have led the experts down a different path. Petitioner was deposed on January 26, 2007. During the course of the deposition, Continental claims to have learned for the first time that electrical power to the refrigerator on the Vessel remained on despite power to the Vessel being shut off at the main breaker panel. This testimony, however, is inconsistent with information gathered by the Fire Marshal at the time of his investigation and included in his report. According to the fire marshal's report,

*15 Affidavit of James E. Mercante, Exh. 1, at 3–4 (emphasis added).

According to the expert affidavit of fire investigator William Nolan, the destruction and disposal of the onboard refrigerator has deprived him of the opportunity to explore whether the refrigerator wiring was modified. See Affidavit of William P. Nolan, ¶ 21, annexed as Ex. S to the Attorney Affirmation of Thomas W. Tobin (“Tobin Aff.”) in Support of Motion for Denial of Exoneration From or Limitation of Liability. Likewise, according to the expert affidavit of certified fire investigator, William Hayden, the spoliation of the Vessel and the fire's remnants prevented him from exploring the possibility that modified wiring supplying power to the Vessel's refrigerator may have posed a substantial fire hazard due to modification and bypass of the protection features in the circuit breaker. See Affidavit of William E. Hayden, MSFE, CFI, CFPS (“Hayden Aff.”) ¶ 18, annexed as Ex. C to the Tobin Aff.; Supplemental Aff. of William E. Hayden (“Hayden Supp. Aff.”), ¶ 10, annexed as Ex. A to the Supplemental Attorney Affirmation of Thomas W. Tobin. Hayden also claims he is unable to investigate the circumstances surrounding the decommissioning of the hot water heater and the possibility that the water heater became energized due to a circuit breaker becoming inadvertently turned to the “on” position. Hayden Aff. ¶ 18. Both Hayden and Nolan were present during the earlier inspections. See Of Decl. ¶ 12.

The Vessel's refrigerator, however, was located and inspected by all experts during the original inspections. Of Decl. ¶ 7. It was ruled out as the cause or origin of the fire. The fire marshal collected the refrigerator's wiring and placed it in a brown bag, which bag remains in the possession of Raymond Of. Id. ¶ 8. All investigators agreed that the refrigerator was not the source or cause of the fire and consented to its disposal. Id. ¶ 9. Similarly, the hot water heater was ruled out as a cause of the fire because of its location. Id.

Most telling, however, are the statements of claimants' own experts at the time of the inspection that there “wasn't a lot to work with” among the charred remains because “the fire damage was too extreme as to make any definitive determination to cause or even exact point of origin.” Petitioner's Mem at 9 (citing Transmarine Survey Report, Exh. 9 at 17). Claimants' expert, Joseph Banahan, commented that the remains of the “electrical systems of the boat were destroyed by the fire and are unable to be tested.” Report prepared by Joe Banahan on 12/08/05. Petitioner's expert agrees that the electrical wiring of the Vessel was in such damaged condition after the fire, melted and fused, further testing or tracing of the wiring was impossible. Of Decl. ¶ 11. Thus, Continental's claim that further inspection of the wiring of the Vessel would have been relevant is controverted by the testimony of claimants' own experts. Continental remains free to challenge these assertions at trial. However, at this juncture, Continental has proffered only speculative assertions that further inspections would have produced a different result—thereby falling short of the test enunciated in In re WRT for imposing the severe sanctions claimants seek here, namely, to demonstrate that the lost information would have been favorable to the claimants here (emphasis supplied). In light of the circumstances presented at this time, I respectfully recommend to Judge Feuerstein that Continental's motion for sanctions be DENIED, with the right to renew such motion at trial, if the testimony elicited at that time supports such renewal.

*16 Petitioner contends that critical surveillance footage showing the main dock where the Vessel was berthed was destroyed by the Marina and that as a sanction, the Marina's claim for damages against Petitioner should be dismissed. It is Petitioner's position that once the fire occurred, the Marina had a duty to preserve the footage. At his deposition, Joseph Weiser, owner of the Marina, testified that at the time of the fire, a camera recorded what was going on around the main dock. He testified that these surveillance cameras were “[p]oised at the two larger docks in the Marina and one going back to the yard.” Transcript of the March 7, 2007 Deposition of Joseph Weiser (“Weiser Dep. Tr.”), at 33, annexed as Ex. A to the Affidavit of Patrick J. Corbett (“Corbett Aff.”) in Support of Cross–Motion. However, nothing captured on the cameras the day of the fire was saved, as Weiser explained:

Q. So if we had asked—the cameras probably took pictures of what occurred in the marina on the day of the fire, was anything on those—from those cameras saved by the Marina?

Weiser Dep. Tr. at 36.

The system used at the Marina was a digital video recorder. See CCTV Owner's Manual, annexed as Ex. 3 to the Affidavit of Thomas M. Rittweger, Esq. (“Rittweger Aff.”) in Opp. to Petitioner's Cross–Motion to Dismiss. The video data from the camera is recorded into a hard drive. Id.; Marina's Mem. in Opp to Cross–Motion, at 2. There is no videotape or CD disc generated. Rittweger Aff., Ex. 3; Weiser Aff. ¶ 6. According to the Marina, “[o]nce the storage space on the hard drive is full, which occurs every 24 hours, the hard drive records new data over the previous day's footage.” Marina's Mem. in Opp. to Cross–Motion at 2–3; Rittweger Aff, Ex. 3; Weiser Aff. ¶¶ 6–8. After the fire, Weiser did not take any steps to preserve the video footage of the day of the fire. He acknowledged that the hard drive was still in existence at the time of his deposition, that the footage showing the main dock on the date of the fire had not been preserved and that the video camera just continued to be taped over since the fire. Weiser Dep. Tr. 92. Weiser testified that no one asked him to preserve the footage. Id. 91. In fact, Weiser did not tell his attorneys that he had the video camera until it came up at his deposition. Id. 92.

The Marina opposes the sanctions motion on the grounds that: (1) Petitioner has not established that the data has been lost or destroyed; (2) the Marina had no obligation to preserve that data; (3) Petitioner cannot establish the Marina had the requisite “culpable state of mind;” and (4) the particular surveillance data was not relevant to Petitioner's claims and/or defenses [DE 69].

*17 The Marina argues that Petitioner's motion must fail because there is no evidence that the data has been destroyed. The Marina contends that it was Petitioner's obligation to retain a forensic expert to examine the surveillance hard drive to determine it the data can be accessed. This argument misses the mark. Under the discovery rules, “the presumption is that the responding party must bear the expense of complying with discovery requests ....” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). On August 31, 2006, Petitioner served upon the Marina a notice to produce “all videotapes which depict your facility before during and after this incident.” Further, at the discovery conference held on April 9, 2008, I directed that the following actions be undertaken:

This surveillance recording was plainly requested in Petitioner's discovery demands and to the extent the footage on the date of the fire can be recovered from the hard drive by a forensic expert, it is the Marina's obligation to do so. Accordingly, the Marina is directed to hire a forensic expert to examine the surveillance equipment and to report back the expert's findings to the Court within 30 days from the date of this of this Order. Notwithstanding my ruling with respect to the Marina's obligation to hire a forensic expert to ascertain once and for all the accessibility of the footage, I will consider Petitioner's motion for spoliation given the Marina's apparent and unexplained disregard of the Court's prior orders.

The Marina contends that since no one requested that it to preserve the data stored in the closed circuit surveillance system within 24 hours, and since the Marina had no reason to believe that litigation would result from the fire since the fire had started aboard the Vessel, the Marina had no obligation to preserve the data.

The Second Circuit has held that “[t]he obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Fujitsu Ltd. v. Federal Exp. Corp., 247 F.3d 423, 436 (2d Cir.2001) (citing Kronisch v. U.S., 150 F.3d 112, 126 (2d Cir.1998)). Pursuant to this obligation, “anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y.2003). “ ‘While a litigant is under no duty to keep or retain every document in its possession ... it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.’ ” Id. (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y.1991)). This obligation to preserve relevant evidence exists whether or not the evidence has been specifically requested in a demand for discovery. See Barsoum v. N.Y.C. Housing Authority, 202 F.R.D. 396, 399 (S.D.N.Y.2001).

*18 Although Federal Rule of Civil Procedure 37(e) is not applicable here, it is useful in understanding what steps parties should take to preserve electronic evidence. Rule 37(e) states: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.” The Advisory Committee notes make clear, however, that “[w]hen a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system” is required. Advisory Committee Note to the 2006 Amendment to Federal Rule of Civil Procedure Rule 37(e). Moreover, “[a]mong the factors that bear on a party's good faith in the routine operation of an information system are the steps the party took to comply with a ... party agreement requiring preservation of specific electronically stored information.” Id.

Twelve boats and a portion of the dock were destroyed by the fire at issue on November 7, 2005. The Marina's position that since the fire started on Petitioner's boat, the Marina had no reason to believe litigation would result from that fire is without merit. The question is not whether the Marina believed it could be held responsible for the damages caused by the fire, but whether “a party should have known that the evidence may be relevant to future litigation.” Fujitsu., 247 F.3d at 436. Unquestionably, Joseph Weiser was on notice, given the sheer breadth of the damage which resulted from the fire, that there was a reasonable probability that litigation would ensue. He had singular knowledge of the existence and operation of the surveillance system and was in the best position to act to preserve that footage. The Marina's argument that the Vessel was outside the range of the surveillance camera is unavailing. The video surveillance was aimed at the main entrance of the gate so that the observer of the closed-circuit transmission could see who was going down the docks. Weiser Dep. Tr. 90. The actual camera lens faces down the main dock. Id. 91. This footage would likely have helped resolve some disputed facts and alleged inconsistencies in this case regarding who boarded the Vessel that day, when Petitioner Kessler came and went, and what activity Wess Weincierz, a mechanic at the Marina, was engaged in that day and whether he was smoking on the dock, and if so, where. The Marina thus had a duty to preserve the surveillance footage.

“Even where the preservation obligation has been breached, sanctions will only be warranted if the party responsible for the loss had a sufficiently culpable state of mind.” In re WRT, 246 F.R.D. at 195. “Negligence alone is sufficient to justify the imposition of some sanction.” Id. at 196.

The Marina argues that Petitioner cannot establish that the Marina acted intentionally or in bad faith because no one ever asked the Marina to preserve the tape. This circular reasoning must be rejected. As discussed above, the Marina's duty to preserve the surveillance video arose on the day of the fire and was not dependant upon a discovery request seeking the production of the surveillance footage. The Marina further argues that Petitioner cannot establish that the Marina acted negligently in failing to preserve the surveillance footage because the only marina employee with access to the system did not know how to stop the surveillance system. This representation does not relieve the Marina of its obligation to preserve the surveillance footage. See, e.g., Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 221 (S.D.N.Y.2003) (failure to preserve backup tapes from critical period after on notice of its duty to preserve was grossly negligent); Doe v. Norwalk Community College, 248 F.R.D. 372, 380 (D.Conn.2007) (where there was “no evidence that the defendants did anything to stop the routine destruction of the backup tapes after [their] obligation to preserve arose,” court finds gross negligence); Pastorello v. City of New York, No. 95 Civ. 470, 2003 WL 1740606, at *11–12 (S.D.N.Y Apr. 1, 2003) (loss of data due to unfamiliarity with record-keeping policy by employee responsible for preserving document was grossly negligent). Thus, I find that the Marina was, at the very least, negligent in failing to preserve the surveillance footage.

*19 The final element that must be demonstrated to warrant the imposition of sanctions is relevance. “A moving party may obtain modest sanctions by showing only that the lost evidence was pertinent to its claims. However, where more severe sanctions are at issue, the movant must demonstrate that the lost information would have been favorable to it.” In re WRT, 246 F.R.D. at 197.

Where, as here, Petitioner cannot establish that the evidence was destroyed in bad faith, “there must be extrinsic evidence to demonstrate that the destroyed evidence was relevant and would have been unfavorable to the destroying party.” De Espana v. Am. Bureau of Shipping, No. 03 CV 3573, 2007 WL 1686327, at *6 (S.D.N.Y. June 6, 2007); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 221 (S.D.N.Y.2003) (moving party must “must demonstrate that a reasonable trier of fact could find the missing [evidence] would support [his] claims”). “The burden placed on the moving party to show that the lost evidence would have been favorable to it ought not be too onerous, lest the spoliator be permitted to profit from its destruction.” Heng Chan v. Triple 8 Palace, Inc., No. 03 Civ. 6048, 2005 WL 1925579, at *7 (S.D.N.Y. Aug. 11, 2005); see also Residential Funding, 306 F.3d at 109; Kronisch, 150 F.3d at 128 (“[To] hold[ ] the prejudiced party to a strict standard of proof regarding the likely contents of the destroyed evidence would subvert the prophylactic and punitive purposes of the adverse inference, and would allow parties who have intentionally destroyed evidence to profit from that destruction.”). The “relevance factor is primarily concerned with whether there has been prejudice to the party seeking sanctions.” Whitney v. Jetblue Airways Corp., No. 07 CV 1397, 2008 WL 2156324, at *6 (E.D.N.Y. Apr. 28, 2008).

According to the Marina, Petitioner cannot demonstrate that the surveillance footage would have been relevant to the issues presented in this action. The Marina describes its surveillance system as a closed circuit TV surveillance system consisting of four fixed cameras focused on the parking lot, the restaurant and the entrances to two of the docks. Exh. 1, Weiser Aff. ¶ 4. The monitor is in Marina owner Joe Weiser's living quarters at the Marina. Weiser Aff. ¶ 11. Only one camera is pointed at the entrance to the main dock, which is approximately 450–600 feet long. Weiser Dep. Tr. 89–91. The fire originated aboard the Vessel which was docked midway down the pier and outside the view of the video camera. The camera was in operation the day of the fire, but according to Weiser, it did not capture any images of the fire.

Petitioner contends that the video footage is relevant to address significant issues regarding the credibility of the mechanic Weincierz, including whether he was working near Petitioner's Vessel. With respect to prejudice, Petitioner argues that he is prejudiced in his ability to defend against the Marina's claims that the fire and resulting damage were caused “solely and proximately by the negligence” of Petitioner. According to Petitioner, the surveillance video would have provided the only evidence of the events that took place on the main dock in the hours before the fire, including the activities of Weiser, Petitioner and the head mechanic and that the absence of the footage has prejudiced his ability to sustain such defense.

*20 Even though the surveillance footage may well not have captured the exact cause of the fire based on the Vessel's being berthed outside the view of the camera, I nevertheless find that the footage would have provided relevant evidence with respect to the competing claims of negligence asserted in this action. Accordingly, I respectfully recommend to Judge Feuerstein that in the event the Marina is unable to produce within 30 days from the date of this Order the surveillance footage after an expert's review that Petitioner's motion for spoliation be GRANTED

Having found the Marina liable for negligent spoliation of the surveillance footage, I must next consider the appropriate sanction. “The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial judge and is assessed on a case-by-case basis.” Fujitsu Limited v. Federal Express Corporation, 247 F.3d 423, 436 (2d Cir.2001) (citation omitted). Dismissal is within a district court's discretion. However, dismissal “is a harsh remedy to be used only in extreme situations.” Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir.1990). “Usually dismissal should be imposed only after consideration of less drastic alternatives.” Barsoum, 202 F.R.D. at 400 (citing West, 167 F.3d at 779).

Petitioner seeks an order dismissing the Marina's claim for damages as a sanction for its spoliation of the surveillance footage. Petitioner, however, has not demonstrated that the Marina acted in bad faith in failing to preserve the surveillance video and, therefore, this drastic remedy is not warranted.

While Petitioner's failure to demonstrate bad faith is sufficient to defeat Petitioner's motion to dismiss the Marina's claim, the Marina's negligent destruction (or failure to attempt to locate) of the footage, even after being specifically directed to do so by prior Court orders, is nevertheless sanctionable and an alternative remedy is appropriate. See, e.g., Treppel v. Biovail Corp., 249 F.R.D. 111, 123–24 (S.D.N.Y.2008) (entitlement to adverse inference not established, nevertheless plaintiff entitled to attorney's fees and defendant to bear the cost of forensic analysis of laptop to locate missing information); Whitney v. JetBlue Airways Corp., No. 07–1397, 2008 WL 2156324, at * 6 (E.D.N.Y. Apr.29, 2008) (awarding attorney's fees and costs associated with motion despite denying request for judgment and adverse inference); Toussie v. County of Suffolk, No. 01–6716, 2007 WL 4565160, at *9–10 (E.D.N.Y. Dec.21, 2007) (finding adverse inference not warranted, but awarding costs to moving party); De Espana v. American Bureau of Shipping, No. 03–3576, 2007 WL 1686327, at * 8 (S.D.N.Y. June 26, 2007) (requiring forensic examination of computer files and awarding costs).

Accordingly, I respectfully recommend to Judge Feuerstein that Petitioner be awarded attorney's fees in connection with the motion and that the Marina bear the cost of conducting a forensic examination of the surveillance system, including the hard drive, to determine if the video footage can be retrieved.

*21 For the reasons discussed above, I respectfully recommend to Judge Feuerstein, that Petitioner's motion to assert a counterclaim against the Marina be GRANTED. I further respectfully recommend that Continental's motion for sanctions arising from spoliation be DENIED and that Petitioner's motion to dismiss the answer and claim of the Marina as a sanction for spoliation be DENIED. However, I recommend that Petitioner be awarded attorney's fees in connection with the motion and that the Marina bear the cost of conducting a forensic examination of the surveillance system, including the hard drive, to determine if the video footage can be retrieved.

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report and Recommendation to file written objections. See alsoFed.R.Civ.P. 6(a) and (e). Such objections shall be filed with the Clerk of the Court via ECF. A courtesy copy of any objections filed is to be sent to the chambers of the Honorable Sandra J. Feuerstein and to the chambers of the undersigned. Any requests for an extension of time for filing objections must be directed to Judge Feuerstein prior to the expiration of the (10) day period for filing objections. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Beverly v. Walker, 118 F.3d 900, 901 (2d Cir.), cert. denied, 522 U.S. 883, 118 S.Ct. 211, 139 L.Ed.2d 147 (1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir.1996).

SO ORDERED.