Manley v. Raspberries Café & Creamery, Inc.

Appellate Division of the Supreme Court of New York

Manley v. Raspberries Café & Creamery, Inc.

126 A.D.3d 1391, 6 N.Y.S.3d 344

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

DecidedMarch 20, 2015

StatusPublished

Cited by1 cases

This text of 126 A.D.3d 1391 (Manley v. Raspberries Café & Creamery, Inc.) 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

Manley v. Raspberries Café & Creamery, Inc., 126 A.D.3d 1391, 6 N.Y.S.3d 344 (N.Y. Ct. App. 2015).

Pincite

Opinion

[1392]*1392Appeal from an order of the Supreme Court, Oneida County (Erin P. Gall, J.), entered November 20, 2013. The order, insofar as appealed from, granted those parts of the motion of plaintiffs seeking preclusion and an adverse inference charge.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Nicole Manley when she was struck in the head and face by a large umbrella from the patio seating area of defendant’s restaurant. Defendant disposed of the umbrella and was unable to locate the umbrella base, and plaintiffs moved for spoliation sanctions. We conclude that Supreme Court properly granted those parts of plaintiffs’ motion seeking an order precluding defendant from presenting evidence concerning the condition of the umbrella and base, as well as an adverse inference charge (see generally Ortega v City of New York, 9 NY3d 69, 76 [2007]). Contrary to defendant’s contention, the court properly considered the extent that the spoliation of the evidence prejudiced plaintiffs (see Puccia v Farley, 261 AD2d 83, 85 [1999]), and “[t]he sanction herein was ‘appropriately tailored to achieve a fair result’ ” (Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 255 [2011]).

Present — Centra, J.P., Peradotto, Carni, Sconiers and De Joseph, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

[1392]*1392Appeal from an order of the Supreme Court, Oneida County (Erin P. Gall, J.), entered November 20, 2013. The order, insofar as appealed from, granted those parts of the motion of plaintiffs seeking preclusion and an adverse inference charge.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Nicole Manley when she was struck in the head and face by a large umbrella from the patio seating area of defendant’s restaurant. Defendant disposed of the umbrella and was unable to locate the umbrella base, and plaintiffs moved for spoliation sanctions. We conclude that Supreme Court properly granted those parts of plaintiffs’ motion seeking an order precluding defendant from presenting evidence concerning the condition of the umbrella and base, as well as an adverse inference charge (see generally Ortega v City of New York, 9 NY3d 69, 76 [2007]). Contrary to defendant’s contention, the court properly considered the extent that the spoliation of the evidence prejudiced plaintiffs (see Puccia v Farley, 261 AD2d 83, 85 [1999]), and “[t]he sanction herein was ‘appropriately tailored to achieve a fair result’ ” (Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 255 [2011]).

Present — Centra, J.P., Peradotto, Carni, Sconiers and De Joseph, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

126 A.D.3d 1391, 6 N.Y.S.3d 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manley-v-raspberries-cafe-creamery-inc-nyappdiv-2015.

Opinion

Related

Cite This Page — Counsel Stack