Toal v. DJB Tap, Inc.

Opinion

Toal v DJB Tap, Inc. - 2026 NY Slip Op 04786

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Toal v DJB Tap, Inc.

2026 NY Slip Op 04786

July 29, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Steven Toal, appellant,

v

DJB Tap, Inc., etc., respondent, et al., defendant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 29, 2026

2024-06882, 2024-12433, (Index No. 617776/21)

Lara J. Genovesi, J.P.

Linda Christopher

Barry E. Warhit

Lourdes M. Ventura, JJ.

Gruenberg Kelly Della (Horn Appellate Group, P.C., Brooklyn, NY [Scott T. Horn and Ross S. Friscia], of counsel), for appellant.

Smith Mazure, P.C., New York, NY (Louise M. Cherkis of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated July 16, 2024, and (2) a judgment of the same court entered October 15, 2024. The order, insofar as appealed from, granted that branch of the motion of the defendant DJB Tap, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it and denied that branch of the plaintiff's cross-motion which was pursuant to CPLR 3126 to impose sanctions upon that defendant for spoliation of evidence. The judgment, insofar as appealed from, upon the order, is in favor of that defendant and against the plaintiff dismissing the complaint insofar as asserted against that defendant.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant DJB Tap, Inc.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

On June 12, 2021, the plaintiff was at a bar owned and operated by the defendant DJB Tap, Inc (hereinafter the defendant), and allegedly sustained injuries when he was assaulted by another patron. The plaintiff commenced this action against, among others, the defendant, alleging negligence. The defendant moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it, contending, inter alia, that it could not be held liable for the unforeseeable and unexpected assault. The plaintiff subsequently cross-moved, among other things, pursuant to CPLR 3126 to impose sanctions upon the defendant for spoliation of evidence. The Supreme Court, inter alia, granted that branch of the defendant's motion and denied that branch of the plaintiff's cross-motion. Subsequently, a judgment was entered, inter alia, dismissing the complaint insofar as asserted against the defendant. The plaintiff appeals.

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" (Gordon v Field, 234 AD3d 823, 824 [internal quotation marks omitted]; see De Abreu v Syed Rests. Enters., Inc., 231 AD3d 1116, 1117; Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d 702, 703). "A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (Gordon v Field, 234 AD3d at 824 [internal quotation marks omitted]; see Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547; De Abreu v Syed Rests. Enters., Inc., 231 AD3d at 1117). "[I]n the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices" (Gordon v Field, 234 AD3d at 824 [internal quotation marks omitted]; see Tanner v Bethpage Union Free School Dist., 161 AD3d 1210, 1211).

Here, the plaintiff did not establish that the defendant was placed on notice that the evidence might be needed for future litigation at the time surveillance footage was automatically deleted (see De Abreu v Syed Rests. Enters., Inc., 231 AD3d at 1118; M.B. v St. Francis Preparatory Sch., 219 AD3d 1399, 1401; Tanner v Bethpage Union Free Sch. Dist., 161 AD3d at 1211). Further, the defendant's preservation of only a portion of the surveillance footage did not indicate a culpable state of mind. The defendant's owner averred in an affirmation that upon learning of the altercation two days after it had occurred, consistent with ordinary business practices, he obtained a copy of the surveillance video, which depicted, among other things, the five minutes preceding the altercation, the altercation itself, and the police and emergency medical response after the altercation (see De Abreu v Syed Rests. Enters., Inc., 231 AD3d at 1117; M.B. v St. Francis Preparatory Sch., 219 AD3d at 1401; Hoppe v Imperial Towers Assoc., 181 AD3d 659, 660). The defendant's owner further averred that by the time he received the preservation letter, the original surveillance footage had already been automatically deleted (see De Abreu v Syed Rests. Enters., Inc., 231 AD3d at 1118). In addition, the plaintiff did not establish that the absence of the additional surveillance footage deprived him of his ability to prove his case (see id.; M.B. v St. Francis Preparatory Sch., 219 AD3d at 1402; Hoppe v Imperial Towers Assoc., 181 AD3d at 660). Accordingly, the Supreme Court properly denied that branch of the plaintiff's cross-motion which was pursuant to CPLR 3126 to impose sanctions upon the defendant for spoliation of evidence.

The Supreme Court also properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it. "'A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties'" (Campolongo v DR & RD, Inc., 241 AD3d 1417, 1418, quoting Lea v McNulty, 227 AD3d 971, 972; see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 518-519; Velez v Pacific Park 38 Sixth Ave., LLC, 183 AD3d 590, 591). "'To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected'" (Campolongo v DR & RD, Inc., 241 AD3d at 1418, quoting Lea v McNulty, 227 AD3d at 972; see Jacqueline S. v City of New York, 81 NY2d 288, 294-295; Bryan v Crobar, 65 AD3d 997, 999). "[T]he criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location" (Campolongo v DR & RD, Inc., 241 AD3d at 1418-1419 [internal quotation marks omitted]; see Lea v McNulty, 227 AD3d at 972; Novikova v Greenbriar Owners Corp., 258 AD2d 149, 153). "[L]andowners have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control" (Campolongo v DR & RD, Inc., 241 AD3d at 1419 [internal quotation marks omitted]; see Lea v McNulty, 227 AD3d at 972; Velez v Pacific Park 38 Sixth Ave., LLC, 183 AD3d at 591). However, "a possessor [or owner] of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults" (Campolongo v DR & RD, Inc., 241 AD3d at 1419 [internal quotation marks omitted]; see Velez v Pacific Park 38 Sixth Ave., LLC, 183 AD3d at 591; Oblatore v 67 W. Main St., LLC, 169 AD3d 705, 706).

Here, the defendant established its prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against it by submitting evidence that the attack on the plaintiff was unforeseeable and unexpected (see Campolongo v DR & RD, Inc., 241 AD3d at 1419; Velez v Pacific Park 38 Sixth Ave., LLC, 183 AD3d at 591). Further, the evidence submitted by the defendant established, prima facie, that it provided adequate security on the night of the altercation (see Campolongo v DR & RD, Inc., 241 AD3d at 1418).

In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff submitted an expert affidavit from a security guard, the expert failed to establish that he was qualified to render an opinion as to the adequacy of the defendant's security measures. To establish the reliability of an expert's opinion, the party offering that opinion must demonstrate that the expert possesses the requisite skill, training, education, knowledge, or experience to render the opinion (see Matott v Ward, 48 NY2d 455, 459; Ghazala v Shore Haven Apt. Del, LLC, 229 AD3d 447, 448; Leicht v City of N.Y. Dept. of Sanitation, 131 AD3d 515, 516). Here, the plaintiff's expert stated that he was licensed but failed to present evidence that he had any practical experience with, or personal knowledge of, security measures in bars similar to the defendant's bar. Moreover, the plaintiff's expert failed to identify any industry-wide standards or accepted practices that the defendant violated. Thus, the conclusions of the plaintiff's expert regarding the adequacy of the safety measures undertaken by the defendant were speculative and conclusory and, therefore, insufficient to raise a triable issue of fact (see Leicht v City of N.Y. Dept. of Sanitation, 131 AD3d at 516; Rosen v Tanning Loft, 16 AD3d 480, 481; Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296, 296). The remainder of the plaintiff's proof was insufficient to raise a triable issue of fact.

The parties' remaining contentions are either improperly raised for the first time on appeal, academic in light of our determination, or without merit.

GENOVESI, J.P., CHRISTOPHER, WARHIT and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

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