Macias v. ASAL Realty, LLC

Appellate Division of the Supreme Court of New York

Macias v. ASAL Realty, LLC

2017 NY Slip Op 2393, 148 A.D.3d 622, 50 N.Y.S.3d 364

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 28, 2017

Docket3561N 306584/10

StatusPublished

Cited by3 cases

This text of 2017 NY Slip Op 2393 (Macias v. ASAL Realty, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Macias v. ASAL Realty, LLC, 2017 NY Slip Op 2393, 148 A.D.3d 622, 50 N.Y.S.3d 364 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered November 9, 2015, which, in this action for personal injuries sustained when plaintiff slipped and fell in defendant’s building, granted plaintiff’s motion to strike defendant’s answer to the extent of directing that an adverse inference charge be given at trial, unanimously affirmed, without costs.

The motion court exercised its discretion in a provident manner in ordering the lesser sanction of an adverse inference charge. Defendant’s principal testified that the building superintendent regularly viewed the lobby surveillance tapes, and the superintendent admitted knowing that the video automatically erased itself approximately every two weeks. This knowledge, coupled with the superintendent being at the scene of plaintiff’s fall in defendant’s building immediately after it occurred, was a sufficient showing that defendant’s destruction of the evidence was, at a minimum, negligent (see e.g. 320 W. 13th St., LLC v Wolf Shevack, Inc., 105 AD3d 586 [1st Dept 2013]). Defendant’s argument that a videotape of the entrance-way where plaintiff fell is not relevant to his claim, is unpersuasive (see e.g. Gogos v Modell's Sporting Goods, Inc., 87 AD3d 248 [1st Dept 2011]).

We have considered the remaining arguments and find them *623 unavailing.

Concur — Richter, J.P., Mazzarelli, Kahn and Gesmer, JJ.

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Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered November 9, 2015, which, in this action for personal injuries sustained when plaintiff slipped and fell in defendant’s building, granted plaintiff’s motion to strike defendant’s answer to the extent of directing that an adverse inference charge be given at trial, unanimously affirmed, without costs.

The motion court exercised its discretion in a provident manner in ordering the lesser sanction of an adverse inference charge. Defendant’s principal testified that the building superintendent regularly viewed the lobby surveillance tapes, and the superintendent admitted knowing that the video automatically erased itself approximately every two weeks. This knowledge, coupled with the superintendent being at the scene of plaintiff’s fall in defendant’s building immediately after it occurred, was a sufficient showing that defendant’s destruction of the evidence was, at a minimum, negligent (see e.g. 320 W. 13th St., LLC v Wolf Shevack, Inc., 105 AD3d 586 [1st Dept 2013]). Defendant’s argument that a videotape of the entrance-way where plaintiff fell is not relevant to his claim, is unpersuasive (see e.g. Gogos v Modell's Sporting Goods, Inc., 87 AD3d 248 [1st Dept 2011]).

We have considered the remaining arguments and find them *623 unavailing.

Concur — Richter, J.P., Mazzarelli, Kahn and Gesmer, JJ.

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Bluebook (online)

2017 NY Slip Op 2393, 148 A.D.3d 622, 50 N.Y.S.3d 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macias-v-asal-realty-llc-nyappdiv-2017.

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