Cuevas v. 1738 Associates, LLC

96 A.D.3d 637, 946 N.Y.S.2d 576

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 2012
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered June 20, 2011, which denied plaintiffs motion for an order “striking defendants’ answer and/or directing a verdict in favor of plaintiff and/or finding as a matter of law that defendants had notice of the dangerous condition sufficient to establish liability” due to spoliation of evidence, unanimously affirmed, without costs.

The court providently exercised its discretion in denying plaintiffs motion for spoliation sanctions. Plaintiff alleges that defendants destroyed or lost video surveillance tapes that supposedly recorded her slip and fall on a wet substance in the building vestibule. Given the lack of concrete evidence that the accident was even recorded in the first place and that plaintiff is still able to pursue her claim through the deposition testimony of a non-party witness, the court had a reasonable basis for denying spoliation sanctions (see Scansarole v Madison Sq. Garden, L.P., 33 AD3d 517, 518 [2006]; Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58, 60 [2002]; Christian v City of New York, 269 AD2d 135 [2000]).

We have reviewed the remaining contentions and find them unavailing. Concur — Gonzalez, P.J., Tom, Andrias, Acosta and Freedman, JJ.