Opinion
2012-06-26
Aida CUEVAS, Plaintiff–Appellant, v. 1738 ASSOCIATES, LLC, et al., Defendants–Respondents.
Lester Schwab Katz & Dwyer, LLP, New York (Michael P. Stieglitz of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondents.
Lester Schwab Katz & Dwyer, LLP, New York (Michael P. Stieglitz of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondents.
GONZALEZ, P.J., TOM, ANDRIAS, ACOSTA, FREEDMAN, JJ.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered June 20, 2011, which denied plaintiff's motion for an order “striking defendants' answer and/or directing a verdict in favor of plaintiff and/or finding as a matter of law that defendantshad notice of the dangerous condition sufficient to establish liability” due to spoliation of evidence, unanimously affirmed, without costs.
The court providently exercised its discretion in denying plaintiff's motion for spoliation sanctions. Plaintiff alleges that defendants destroyed or lost video surveillance tapes that supposedly recorded her slip and fall on a wet substance in the building vestibule. Given the lack of concrete evidence that the accident was even recorded in the first place and that plaintiff is still able to pursue her claim through the deposition testimony of a non-party witness, the court had a reasonable basis for denying spoliation sanctions ( see Scansarole v. Madison Sq. Garden, L.P., 33 A.D.3d 517, 518, 827 N.Y.S.2d 1 [2006];Tommy Hilfiger, USA v. Commonwealth Trucking, 300 A.D.2d 58, 60, 751 N.Y.S.2d 446 [2002];Christian v. City of New York, 269 A.D.2d 135, 703 N.Y.S.2d 5 [2000] ).
We have reviewed the remaining contentions and find them unavailing.