Opinion
1944, 1944A.
Decided December 9, 2003.
Judgment, Supreme Court, Bronx County (Alan Saks, J.), entered October 24, 2002, upon a jury verdict, which awarded plaintiff damages, unanimously reversed, on the law, the facts and in the exercise of discretion, the answer reinstated, and the matter remanded for a new trial. Appeal from judgment, same court (Stanley Green, J.), entered July 6, 2001, unanimously dismissed, without costs, as superseded by the appeal from the subsequent judgment.
Alexander J. Wulwick, for Plaintiff-Respondent.
Janet L. Zaleon, for Defendant-Appellant.
Before: Buckley, P.J., Nardelli, Sullivan, Williams, Lerner, JJ.
The trial court's striking of defendant's answer and finding it negligent as a matter of law for not repairing a broken step, imposed as a sanction for spoliation of inspection and repair records, was an improvident exercise of discretion, in light of the facts that plaintiff did not move for sanctions until well into the trial, that the apparent loss of the documents was not willful, and that the absence of the documents was not fatal to plaintiff's ability to present her case ( see Freeman v. Kirkland, 184 A.D.2d 331; Holliday v. "John Jones", 297 A.D.2d 471) . The testimony adduced at trial could have allowed a jury to find that the defective condition that allegedly caused the accident existed long enough to provide defendant with constructive notice, and thus the loss of the inspection and repair reports for the building did not preclude plaintiff from making a prima facie case of negligence ( see Detres v. New York City Hous. Auth., 271 A.D.2d 309, 310-311). A more appropriate sanction for the apparent loss of the documents would have been a missing document charge, permitting the jurors to draw an inference against defendant on the issue of notice ( see Bin Xin Tan v. St. Vincent's Hosp. and Med. Ctr., 294 A.D.2d 122).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.