Opinion
2002-02749
Argued February 28, 2003.
March 17, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Lifson, J.), dated February 14, 2002, which, upon a jury verdict, is in favor of the defendant and against her dismissing the complaint.
Adeline Ellis, Nyack, N.Y. (Jeffrey Ellis of counsel), for appellant.
Adler Larkin, Riverhead, N.Y. (Ralph J. Bavaro of counsel), for respondent.
Before: GABRIEL M. KRAUSMAN, J.P., SANDRA L. TOWNES, STEPHEN G. CRANE, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The Supreme Court providently exercised its discretion in declining to impose a sanction against the defendant for alleged spoliation of evidence. There was no showing that the defendant willfully or negligently disposed of any key physical evidence after being placed on notice that it might be needed for future litigation (cf. DiDomenico v. C S Aeromatick Supplies 252 A.D.2d 41, 53). Further, the plaintiff failed to show that she was in any way prejudiced by the alleged acts of spoliation in light of the defendant's stipulations at trial and the availability and admission into evidence of the paint can label (see Gomez v. Metro Terms. Corp. 279 A.D.2d 550; Gallo v. Bay Ridge Lincoln Mercury, 262 A.D.2d 450, 451).
Contrary to the plaintiff's contentions, the Supreme Court properly precluded the testimony of her safety consultant expert, as the subject did not call for technical knowledge beyond the ken of the typical juror (see Bermeo v. Rejai, 282 A.D.2d 700, 701; Bearss v. Westbury Hotel, 33 A.D.2d 47, 48-49; cf. Kulak v. Nationwide Mut. Ins. Co., 40 N.Y.2d 140, 147-148).
KRAUSMAN, J.P., TOWNES, CRANE and MASTRO, JJ., concur.