Goldston v. T.J. Maxx, Inc.

44 A.D.3d 617, 841 N.Y.S.2d 881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2007
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Gigante, J.), dated May 3, 2006, as denied its motion for summary judgment dismissing the complaint, and the plaintiffs cross-appeal from so much of the same order as denied their cross motion to impose sanctions for the alleged spoliation of evidence.

Ordered that the order is affirmed, without costs or disbursements.

The defendant failed to establish its entitlement to judgment as a matter of law on the issue of whether it lacked actual or constructive notice of the allegedly dangerous conditions which caused the infant plaintiffs fall (see DeFalco v BJ’s Wholesale Club, Inc., 38 AD3d 824 [2007]; Yioves v T.J. Maxx, Inc., 29 AD3d 572 [2006]). Accordingly, the defendant’s motion for summary judgment was properly denied.

The plaintiffs’ cross motion to impose sanctions for the alleged spoliation of evidence also was properly denied (see Denoyelles v Gallagher, 40 AD3d 1027 [2007]). Miller, J.P., Ritter, Goldstein and Dickerson, JJ., concur. [See 12 Misc 3d 1152(A), 2006 NY Slip Op 50865(U) (2006).]