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Minaya v. Duane Reade Intl

Appellate Division of the Supreme Court of New York, First Department
Oct 1, 2009
66 A.D.3d 402 (N.Y. App. Div. 2009)

Opinion

No. 1071.

October 1, 2009.

Order, Supreme Court, New York County (Debra A. James, J.), entered January 22, 2009, which denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion to strike defendant's answer on the ground of spoliation of evidence to the extent of precluding defendant from presenting evidence at trial as to the issue of its notice of the condition of the stairs on which plaintiff was injured and directing that an adverse inference be charged, unanimously modified, on the law, to direct that the sanction be limited to directing that an adverse inference be charged, and otherwise affirmed, without costs.

Chesney Murphy, LLP, Baldwin (Michael Jenks of counsel), for appellant.

Trolman, Glaser Lichtman, P.C., New York (Michael T. Altman of counsel), for respondent.

Before: Mazzarelli, J.P., Saxe, Moskowitz, Renwick and Richter, JJ.


In sanctioning defendant for failing to preserve critical evidence, the motion court appropriately exercised its "broad discretion to provide . . . relief to the party deprived of the lost evidence" ( Ortega v City of New York, 9 NY3d 69, 76). Defendant failed to preserve a video recording that may have shown the stairway before and during plaintiff's accident. The unavailability to plaintiff of the video recording may have impaired his ability to establish that defendant possessed the requisite notice of a defective condition on the stairs. Under these circumstances, however, the extreme sanction of preclusion is not warranted "to restore balance to the matter" ( Baldwin v Gerard Ave., LLC, 58 AD3d 484, 485). Rather, an adverse inference is sufficient to prevent defendant from using the absence of the videotape to its own advantage ( Tomasello v 64 Franklin, Inc., 45 AD3d 1287).


Summaries of

Minaya v. Duane Reade Intl

Appellate Division of the Supreme Court of New York, First Department
Oct 1, 2009
66 A.D.3d 402 (N.Y. App. Div. 2009)
Case details for

Minaya v. Duane Reade Intl

Case Details

Full title:JOSE MINAYA, Respondent, v. DUANE READE INTERNATIONAL, INC., Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 1, 2009

Citations

66 A.D.3d 402 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 6767
886 N.Y.S.2d 154

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