Burch v. New York City Housing Authority

72 A.D.3d 551, 898 N.Y.S.2d 842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Michael D. Stall-man, J.), entered August 20, 2009, which, in an action for personal injuries allegedly sustained in a slip and fall down a staircase in defendant’s building, denied plaintiffs motion to strike defendant’s answer, unanimously affirmed, without costs.

The motion court providently exercised its discretion in denying plaintiffs request for spoliation sanctions predicated on the loss of the personal handwritten notes of defendant’s employee. There is no evidence that defendant intentionally or negligently disposed of the notes with knowledge of their evidentiary value to plaintiff or plaintiffs claimed need for them (see Diaz v Rose, 40 AD3d 429 [2007]; Herbert v City of New York, 12 AD3d 209, 210 [2004]). The employee was under no duty to make the notes, which were not prepared in the regular course of defendant’s business, and upon learning of the existence of the notes, defendant undertook a search of the location they were last known to be kept, and could not find them (see Voultepsis v Gumley-Haft-Klierer, Inc., 60 AD3d 524, 526 [2009]). Nor did defendant willfully fail to comply with the discovery orders of the court (see Hernandez v Pace El. Inc., 69 AD3d 493 [2010]). The record shows that defendant timely responded to plaintiffs notice of discovery and inspection by providing all the documents that were in its possession responsive to plaintiff’s requests. Concur—Gonzalez, P.J., Saxe, Nardelli, McGuire and Moskowitz, JJ. [Prior Case History: 2009 NY Slip Op 31812(U).]