Opinion
No. 116068/08.
08-06-2014
Kathrin FREIENSTEIN, Plaintiff, v. MANDARIN ORIENTAL NEW YORK HOTEL, LLC, Mandarin Oriental (New York) Inc. Istithmar Columbus Centre, LLC, Bovis Lend Lease LMB, Inc. and Duschqueen, Inc., Defendants.
Jeremy A. Hellman, Esq., Rheingold Valet et al., New York, for plaintiff. Heidi M. Weiss, Esq., Robert M. Michell, Esq., Law Offices of Edward Garfinkel, Brooklyn, for Mandarin. Alan R. Meller, Esq., Law Offices of Tobias & Kuhn, New York, for Duschqueen. Deborah Del Sordo, Esq., Ahmuty, Demers & McManus, New York, for Bovis. John A. Fearns, Esq., Lamb Kretzer et al., Seacaucus, New Jersey, for Old Castle.
Jeremy A. Hellman, Esq., Rheingold Valet et al., New York, for plaintiff.
Heidi M. Weiss, Esq., Robert M. Michell, Esq., Law Offices of Edward Garfinkel, Brooklyn, for Mandarin.
Alan R. Meller, Esq., Law Offices of Tobias & Kuhn, New York, for Duschqueen.
Deborah Del Sordo, Esq., Ahmuty, Demers & McManus, New York, for Bovis.
John A. Fearns, Esq., Lamb Kretzer et al., Seacaucus, New Jersey, for Old Castle.
Opinion
BARBARA JAFFE, J.
Each defendant moves for an order granting it summary judgment on all claims and cross-claims against it. Bovis Lend Lease LMB, Inc. (Bovis) and Mandarin Oriental New York Hotel, LLC, Mandarin Oriental (New York) Inc., and Istithmar Columbus Centre, LLC (Mandarin defendants) move for an order granting them summary judgment on their claims for indemnification against Duschqueen, Inc. Plaintiff cross-moves pursuant to CPLR 3126 for spoliation sanctions against Mandarin defendants and Duschqueen.
I. BACKGROUND
Bovis was hired by nonparty Columbus Centre LLC to build the shell and core of the Mandarin Oriental New York Hotel in Manhattan. By agreement dated August 1, 2002, Bovis subcontracted with Duschqueen to install shower doors for the hotel. Pursuant to section 12.5 of that agreement, Duschqueen agreed to indemnify and save harmless Bovis and Mandarin:
from and against any and all claims, damages, losses, liabilities, suits, judgments, actions and all expenses (including attorneys fees' [sic] and disbursements) arising out of any act, error or omission or breach of Contract ... by the Contractor or any of its subcontractors or suppliers of any tier in connection with the performance of the Work hereunder or otherwise arising out of, in connection with or as a consequence of the performance of the Work hereunder.
(N.Y.SCEF 138). The shower installation project was completed in 2003. (N.Y.SCEF 137, 139).
On May 5, 2008, during her stay in room 4606 at the hotel, plaintiff sustained personal injuries when, after taking a shower, the glass door of the shower stall shattered on her. Later that day, Patrick Ammiano, director of hotel security, submitted a general liability loss notice to Mandarin's insurance carrier. (N.Y.SCEF 195). The hotel also generated an incident report (N.Y.SCEF 175), and a hotel security employee took photographs of the scene. (N.Y.SCEF 133, 212). A staff safety meeting at which plaintiff's accident was discussed was subsequently held. (N.Y.SCEF 133).
II. PROCEDURAL BACKGROUND
By summons and complaint dated November 19, 2008, plaintiff commenced the action against the Mandarin defendants, owners of the Mandarin Oriental New York Hotel in Manhattan (N.Y.SCEF 26). By supplemental summons dated March 3, 2009, Istithmar, the operator of the premises (N.Y.SCEF 26), and by second supplemental summons dated December 20, 2010, Bovis, the construction manager of the installation project, became party defendants (N.Y.SCEF 14). On or about April 20, 2011, plaintiff commenced an action against Duschqueen, and successfully consolidated it with this action. (N.Y.SCEF 40, 147). On or about January 15, 2013, Duschqueen impleaded Old Castle Building Envelope, Inc., f/k/a Old Castle Glass, Inc. and Old Castle Engineered Products, Inc. (Old Castle) with which it contracted to manufacture the shower door glass. (N.Y.SCEF 107).
Defendants assert cross claims for contribution against each other, and Mandarin and Bovis seek indemnification from Duschqueen. (N.Y.SCEF 152). Duschqueen asserts causes of action against Old Castle for contribution and strict products liability. (N.Y.SCEF 107).
Plaintiff testified at an examination before trial (EBT) held on August 18, 2009, and was given the standard instruction to answer the questions posed to her. She recounted that she and her boyfriend had used the room's shower several times a day in the three days before her accident, experienced no difficulties, and noticed no cracks in the shower door glass. After showering, she placed her hand on the shower door handle, about to open it, when the door explosively shattered, releasing onto her thousands of small pieces. Building security, a housekeeper, and a manager responded to her call for assistance. The manager accompanied her and her boyfriend in the ambulance to the hospital at which the manager paid for all of the medical treatment plaintiff received there. (N.Y.SCEF 81, 175).
The handle is a horizontal stainless steel bar on which a bath mat or towels may be hung. An identical bar is on the exterior of the door. (N.Y.SCEF 176, 177).
At an EBT held on September 25, 2009, Ammiano testified that since the hotel's opening in 2003, there have been no other accidents with shower doors, and that the shower door in plaintiff's room had never been modified. (N.Y.SCEF 133).At an EBT held on November 18, 2009, James Rogers, the hotel's chief engineer, testified that there had never been a request for service or repairs for room 4606, that the door had never been removed from its hinges, and that no drilling or cutting of the glass was ever performed on it. He referred to hotel records reflecting that the glass door had been inspected in January and July of 2007 and in January 2008, and that no defects or other observations were identified, and that for one week each in March 2007 and March 2008, during annual maintenance inspections by engineering staff, no problems associated with the shower door were recorded. Rogers also was unaware of any other accidents involving a shower door. (N.Y.SCEF 134).
On May 19, 2011, Duschqueen's president, John Veras, was personally served with a summons and complaint in this action. (N.Y.SCEF 192, 193).
On June 12, 2013, the parties' representatives inspected the replacement shower door in room 4606, and saw that the bar is centered on it and touches the adjacent wall when opened. The bar in room 4706 was also inspected. It is not centered and it does not touch the wall when opened. (N.Y.SCEF 171, 174, 191).
At an EBT held on July 25, 2013, Steven Sommer, senior vice-president of Bovis, testified that Bovis hired all subcontractors and oversaw and coordinated their work. While Bovis would inspect the subcontractors' work to ensure it met design specifications, Sommer denied that Bovis would instruct them on their performance. Rather, an independent entity sent him design specifications for the showers, which he then relayed to Duschqueen. Although he recalls seeing and opening hundreds of shower doors at the site, and recalls that the bars were aesthetically centered on the doors, he denied that when opened, they made contact with the walls, noting that if they did, they would not pass inspection. (N.Y.SCEF 139).
On August 29, 2013, plaintiff was again deposed, and was instructed to refrain from making unsolicited remarks. Her testimony was substantially consistent with her earlier testimony. (N.Y.SCEF 82).
At an EBT held on September 16, 2013, Veras testified that in or about May 2011, Duschqueen could no longer pay the rent for its office space and beginning in July 2011, he was denied access to his office and the records stored therein. Later that month, Duschqueen's landlord denied Veras's request to retrieve his possessions and discarded the records. On September 3, 2011, Duschqueen filed for bankruptcy. Veras acknowledged that Duschqueen's records from the Mandarin project would have included contracts, documents detailing Duschqueen's scope of work, field dimensions, inspection reports, applications for payment, and purchase orders. (N.Y.SCEF 137).
Veras also testified that Old Castle manufactured the glass that Duschqueen fitted with hinges, handles, and other hardware. According to Veras, the bars were approximately 2–½ inches off-center, so that they would not touch the walls. (Id. ).
At an EBT held on September 16, 2013, Gioannini testified that immediately after plaintiff's accident, the broken glass was cleaned up by the hotel's housekeeping staff. He had not considered the possibility that plaintiff would sue the hotel, and claimed that the bar on the replacement shower door, as depicted in a photograph, is in the same center position as the bar on the original door in room 4606, and that if a bar could touch the adjoining wall, it would require readjustment. (N.Y.SCEF 86).
Gioannini escorted plaintiff and her boyfriend to the hospital as a courtesy. He did not recall telling plaintiff that someone had once cut their foot on a shower door in the hotel, and was unable to recall any discussion with her about the incident. (Id. ).
At an EBT held on September 30, 2013, Pedro Rodriguez, a mechanical engineer at the hotel who inspected the shower door in January and July of 2007, testified that during a shower inspection, the bars and hinges are checked to ensure that they are secure, and that the glass doors are checked for chips and cracks. From 2003 until his retirement in 2012, he never heard of a door exploding, and never received any complaints about the shower door in room 4606. He recalls that the bar was approximately centered on the shower door, and that the bar on the replacement door, as shown in a photograph, is in the same position. (N.Y.SCEF 136)
In her supplemental bill of particulars, dated December 31, 2013, plaintiff alleges, in pertinent part, that defendants installed an “improperly tempered glass shower door” which was installed in such a manner that the bar could touch the adjoining wall, thereby risking breakage. (N.Y.SCEF 209, Exh. A). In a witness exchange of the same date, plaintiff disclosed that she expected her expert to testify that the glass door “was improperly tempered, leading to larger glass pieces to be made upon breakage instead of less harmful small beads.” (N.Y.SCEF 117).
III. CONTENTIONS
Mandarin argues that as its routine inspections of the shower door revealed no defects or damage, and that as plaintiff and her boyfriend discerned nothing wrong with the door, it cannot be charged with notice of any defect. (N.Y.SCEF 122). Bovis and Duschqueen deny having installed a bar that could touch the wall when opened. (N.Y.SCEF 76, 93, 142). Bovis and Mandarin also argue that they are entitled to indemnification from Duschqueen, as plaintiff's action arises from Duschqueen's work. (N.Y.SCEF 76, 93, 122). Old Castle asserts that there is no evidence that its glass was improperly tempered or otherwise defective. (N.Y.SCEF 103, 120).
In opposition to Bovis's and Mandarin's motion, Duschqueen argues that there is no evidence that it was negligent, and that it was never intended that it would remain liable to indemnitees for injuries occurring five years after installation. (N.Y.SCEF 96, 208). In opposition to Old Castle's motion, Duschqueen, while denying that it had installed an improperly tempered glass door, contends that the allegations set forth in plaintiff's disclosures about what she intends to prove about the glass create triable issues as to Old Castle's liability. (N.Y.SCEF 209).
Plaintiff, in opposition to Bovis's, Duschqueen's, and Mandarin's motions, submits an affidavit in which her expert states that tempered glass, when subject to certain stresses, may break and ultimately shatter, although not at the moment of impact, but weeks later. In his expert opinion, based on Mandarin's and Bovis's admissions that the bar was centered on the door, the glass door in room 4606 touched the wall repeatedly when opened, thereby triggering the breakage. He also opines that the bar could have been installed so that it would not touch the wall, and that a cushion or door jamb would have softened the impact. He faults Bovis and Duschqueen for the defective installation, and Mandarin for allowing the defect to persist, which he claims would have been apparent to any inspector or engineer opening the door. (N.Y.SCEF 170).
Plaintiff's expert also observes that Old Castle's logo, embedded by Duschqueen into the corners of all of the glass shower doors installed by Duschqueen at the hotel (N.Y.SCEF 182, 170), had been removed from the shower door in room 4706 (N.Y.SCEF 170). He thus asserts that Mandarin's disposal of the glass prevents him from proving that the logo had been scraped off the shower door in room 4606, and that the scraping further weakened the glass. (N.Y.SCEF 168, 170).
In additional support of her opposition to Mandarin's motion, by affidavit dated March 18, 2014, plaintiff alleges that when Gioannini escorted her to the hospital, he told her that a previous hotel guest had cut her foot on the bottom of the shower door, and that the hotel thus shaved the bottoms of all of the glass doors. (N.Y.SCEF 172). Based on this evidence, plaintiff contends that triable issues exist as to whether Mandarin cut the glass door in room 4606 and/or scraped off the Old Castle logo, thereby compromising the integrity of the glass. (N.Y.SCEF 168, 170).
In reply, Mandarin submits the affidavit of Gioannini, dated March 19, 2014, by which he denies the conversation recounted by plaintiff or that he ever heard of anyone shaving the bottom of a glass shower door at the hotel (N.Y.SCEF 211), and the affidavit of Ammiano, dated March 21, 2014, who also denies that any hotel staff member ever shaved any glass door at the hotel (N.Y.SCEF 212). Mandarin argues that plaintiff's affidavit constitutes a feigned attempt to raise a triable issue, and that she has recourse to photographs, other shower doors in the hotel, and the testimony of others to prove her claim. (N.Y.SCEF 210). Bovis, Duschqueen, and Mandarin also observe that because plaintiff's expert bases his opinion on his inspection of the replacement door, plaintiff's theory of negligence is speculative. (N.Y.SCEF 210, 215, 239). Bovis also argues that the mere assertion of a claim of defective work triggers its entitlement to indemnity. (N.Y.SCEF 221).
In support of her cross motion, plaintiff claims that she has been deprived of crucial evidence due to Mandarin's failure to preserve the shattered glass and that its post-accident actions prove that it was aware of a potential lawsuit. According to plaintiff's expert, Mandarin's failure to preserve the glass has frustrated his ability to test for whether it was compromised before the accident. (N.Y.SCEF 170).
Plaintiff also faults Duschqueen for the destruction of its records, thereby depriving her of evidence of the position of the bar on the door asks that Mandarin's and Duschqueen's answers be stricken, and seeks an order precluding them from introducing any evidence at trial, and finding, as a matter of law, that the shower door was defective. (N.Y.SCEF 168).In opposition to plaintiff's cross motion, Mandarin argues that it took the regular step of cleaning the room after the accident, that it did not anticipate a lawsuit, that preserving the glass pieces would not have aided plaintiff, and that plaintiff has failed to show prejudice as she can prove her case with photographs or an identical door. (N.Y.SCEF 210).
Duschqueen also opposes plaintiff's cross motion, denying that it had notice that it would be locked out of its office and prohibited from retrieving its belongings, and contending that the landlord's decision to dispose its office contents was beyond its control. (N.Y.SCEF 207).
IV. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
A party seeking summary judgment must demonstrate, prima facie, that it is entitled to judgment as a matter of law by presenting sufficient evidence to negate any material issues of fact. (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 314 [2004];Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ). If the movant meets this burden, the opponent must offer evidence in admissible form to demonstrate the existence of factual issues that require a trial, as “mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient.” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). If the movant does not meet this burden, the motion must be denied, regardless of the sufficiency of the opposition. (Winegrad, 64 N.Y.2d at 853). “Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions.” (Forrest, 3 NY3d at 315,quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 [1986] ). Unless it clearly appears that issues are not genuine, but feigned, courts may not assess credibility on a motion for summary judgment, and the facts must be viewed in the light most favorable to the nonmoving party. (Forrest, 3 NY3d at 314;Glick & Dolleck v. Tri–Pac Export Corp., 22 N.Y.2d 439, 441 [1968] ).
A. Mandarin
Negligence arises from a duty, a breach thereof, and an injury proximately caused thereby. (Kenney v. City of New York, 30 AD3d 261, 262 [1st Dept 2006] ). Liability for a dangerous condition on premises may arise from the duty owed by virtue of ownership, occupancy, control, or special use of the premises. (Jackson v. Bd. of Educ. of City of New York, 30 AD3d 57, 60 [1st Dept 2006] ). Absent a duty, there is no liability (Palsgraf v. Long Is. R. Co., 248 N.Y. 339, 342 [1928] ), and whether a duty exists constitutes a legal question for the court (Eiseman v. State, 70 N.Y.2d 175, 187 [1987] ).
An owner of property owes a duty to maintain the property in reasonably safe condition (Basso v. Miller, 40 N.Y.2d 233 [1976] ), and will be held liable for injuries arising from dangerous conditions it created or of which it had actual or constructive notice. (Herman v. State of New York, 63 N.Y.2d 822 [1984];Smith v. Costco Wholesale Corp, 50 AD3d 499, 500 [1st Dept 2008] ). In moving for summary judgment dismissing a cause of action based on a dangerous condition on premises, the premises owner must make a prima facie showing that it neither created nor had notice of the dangerous condition. (Early v. Hilton Hotels Corp., 73 AD3d 559 [1st Dept 2010] ).
1. Causing or creating a dangerous condition
What constitutes a dangerous or defective condition depends on the particular circumstances of each case, and is thus generally a factual question for the jury. (Trincere v. County of Suffolk, 90 N.Y.2d 976, 977 [1997] ). Here, although Sommer and Veras deny that any of the bars could touch the walls, Sommer admits that the bars were centered, and Mandarin's employees believe that the new, centered bar in room 4606 is positioned like the one on the original door, thereby raising a triable issue as to whether the bar in room 4606 repeatedly came into contact with the wall before plaintiff's accident. Absent an expert rebuttal of plaintiff's expert's opinion that regular contact with a hard surface or that the scraping off of a logo renders a tempered glass door prone to shattering, a triable issue exists as to whether the door constitutes a dangerous condition. (See Thorn v. Wilmorite, Inc., 281 A.D.2d 981 [4th Dept 2001] [triable issues existed regarding whether stacking of tables constituted dangerous condition]; Argenio v. Metropolitan Transp. Auth., 277 A.D.2d 165 [1st Dept 2000] [expert's contention that sidewalk depression of sufficient size to entrap plaintiff's foot raised inference it constituted dangerous condition, thus creating factual questions]; cf. Hanley v. Affronti, 278 A.D.2d 868, 869 [4th Dept 2000] [issue of fact raised by conflicting expert opinions as to whether basement door, which opened toward stairway, rather than outward, constituted dangerous condition] ).
Plaintiff's recent affidavit about Gioannini's statement that Mandarin had cut down shower doors in response to a guest injury, along with her expert's opinion, constitute evidence that Mandarin caused and/or created a defect that may have rendered the door prone to breakage. As plaintiff was not asked about her conversation with Gioannini during her deposition, and there is nothing in her affidavit that directly or clearly contradicts her testimony, there is an insufficient basis for finding that plaintiff has improperly attempted to create a factual issue. (See Shapiro v. Boulevard Housing Corp., 70 AD3d 474, 475–476 [1st Dept 2010] [as plaintiff's self-serving affidavit did not undercut prior testimony, it could not be disregarded as feigned]; Barco v. Green Bus Lines, Inc., 62 AD3d 923, 924 [2d Dept 2009] [plaintiff's affidavit sufficiently consistent with prior deposition testimony, did not create feigned factual issue]; Castro v. New York City Tr. Auth., 52 AD3d 213, 214 [1st Dept 2008] [party representative's affidavit did not contradict earlier deposition testimony; could be considered on motion for summary judgment] ).In contrast to the circumstances presented in Van Damme v. Gelber, where the court disregarded as feigned the defendant's new theory of liability belatedly interposed in opposition to a motion for summary judgment, here, plaintiff posited no theory of liability at her deposition. (111 AD3d 408 [1st Dept 2013] ; see also Nicholas v. New York City Hous. Auth., 65 AD3d 925, 926–927 [1st Dept 2009] [plaintiff's affidavit attesting to new theory of liability tailored to avoid consequences of deposition testimony]; Yan Quan Wu v. City of New York, 42 AD3d 451, 453 [2d Dept 2007] [plaintiff's affidavit contained new and contrived claims] ). Also distinguishable is Armstrong v. Sensormatic/ADT, 100 AD3d 492, 493 (1st Dept 2012). There, the plaintiff was obliged to report allegedly discriminatory conduct but had never testified to it. Thus, the court disregarded as feigned allegations that he had reported the conduct that he included for the first time in an affidavit in opposition to defendant's motion for summary judgment.
Here, however, plaintiff's theory of liability arises from an admission by a Mandarin employee, not from her act or failure to act. And, absent her expert's opinion, it is unlikely that she or even her lawyer would have necessarily grasped the significance of the statement earlier. Consequently, it was not incumbent on her to mention the statement at her deposition, and in any event, she was not asked about it. That she first mentions the conversation with Gioannini in response to Mandarin's motion presents a credibility issue better resolved by the trier of fact.
2. Constructive notice
Even if Mandarin did not create the dangerous condition, it must be determined whether it had notice of it. Absent any contention that Mandarin had actual notice of the allegedly dangerous condition of the door, it must be determined whether it had constructive notice of it.
Constructive notice exists when a dangerous condition has been visible and apparent for a sufficient amount time to allow the defendant's employees to discover and remedy it. (Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837 [1986] ). In Benjamin v. Rogers, the plaintiff injured his hand when a glass window shattered after he tapped it. The defendant premises owner testified that, to his knowledge, the glass was installed 20 years earlier, when the premises were constructed. It was therefore the plaintiff's burden in that case to raise a triable issue as to whether the defendant nevertheless knew or should have known that the glass was defective and, having failed to do so, summary judgment was granted to the defendant. (242 A.D.2d 516 [2d Dept 1997] ; cf. Barber v. Barber, 255 A.D.2d 934 [1st Dept 1998] [defendant's common knowledge that glass can break insufficient to constitute notice of specific defect that caused injury] ).
Here, Mandarin offers admissible evidence demonstrating that it did not install the shower doors, that there were no complaints or incidents concerning the shower doors, that it routinely checked for cracks and chips, and that plaintiff and her boyfriend discerned no problems with the door in the days preceding the accident. Nonetheless, the alleged defect, namely, the positioning of the bar in a manner permitting it to come into repeated contact with the wall, would have been apparent to any inspector or engineer who opened the shower door, a proposition not actually disputed here. That Mandarin inspected that bars and hinges to ensure their security, and the glass doors for cracks and chips, does not excuse it from inspecting the doors to ensure that they opened without impact. Thus, as Mandarin acknowledges that its employees regularly inspected the shower stalls for several years before the accident, a triable issue exists as to whether Mandarin had constructive notice of the alleged defect. (See Carter v. State, 119 AD3d 1198, 2014 N.Y. Slip Op 05394 [3d Dept 2014] [defendant's testimony that handrail in allegedly defective condition existed for extensive period of time and that premises were regularly inspected raised issue as to whether it was on notice thereof]; McLaughlin v. Thyssen Dover El. Co., 117 AD3d 511 [1st Dept 2014] [expert's contention that defendants could have discovered misleveling condition in elevator with reasonable diligence precluded summary judgment]; Cerverizzo v. City of New York, 116 AD3d 469 [1st Dept 2014] [triable issue of constructive notice of toxic fumes raised as to whether premises owner fulfilled duty to monitor air quality adequately]; DePaul v. N.Y. Brush, 114 AD3d 609 [1st Dept 2014] [triable issues raised as to defendants' constructive notice of rotten wooden plank as they regularly inspected site, and defect not transient] ). That no such accident ever occurred at the hotel is not dispositive.
3. Plaintiff's cross-motion for an order imposing a sanction for spoliation
Once a party is “on notice of a credible probability that it will become involved in litigation,” it has an obligation to preserve evidence that may be needed in the future. (Voom HD Holdings LLC v. EchoStar Satellite L.L.C., 93 AD3d 33 [1st Dept 2012] ). A court may sanction a party for the intentional destruction of evidence (see CPLR 3126 ), as well as for its negligent destruction (see Strong v. City of New York, 112 AD3d 15, 21 [1st Dept 2013] ).
A court has broad discretion to “provide ... relief to the party deprived of the lost evidence” (Ortega v. City of New York, 9 NY3d 69, 76 [2007] ), and may fashion an appropriate remedy “to restore balance” to the litigation (Baldwin v. Gerard Ave., LLC, 58 AD3d 484, 485 [1st Dept 2009] ). Nevertheless, the drastic sanction of striking pleadings should not be imposed unless there has been a showing of a high degree of culpability evincing dilatory or contumacious conduct. (Strong, 112 AD3d at 23–24;Baldwin, 58 AD3d at 485). Similarly, precluding the use of evidence at trial may be too severe or extreme a sanction, particularly when the destruction was negligent, rather than intentional. (Strong, 112 AD3d at 24;Minaya v. Duane Reade Intern., Inc., 66 AD3d 402 [1st Dept 2009] ).
Less severe sanction, or no sanction, may be appropriate when the spoliation does not deprive a party of the ability to establish her case. (Pennachio v. Costco Costco Wholesale Corp., 119 AD3d 662, 2014 N.Y. Slip Op 05165 [2d Dept 2014] ; Denoyelles v. Gallagher, 40 AD3d 1027 [2d Dept 2007] ). For example, a sanction may take the form of an adverse inference charge at trial. (See Pattern Jury Instruction 1:77; Strong, 112 AD3d at 24).
Mandarin's conduct in alerting its general liability insurance carrier of the accident, taking photographs of the scene, filing an incident report, paying for plaintiff's treatment at the hospital, and convening a safety meeting with staff after the accident reflects its awareness of the credible probability that plaintiff would commence a lawsuit against it, thereby imposing on it a duty to preserve at least some pieces of the shower door. (See Malouf v.. Equinox Holdings, Inc., 113 AD3d 422 [1st Dept 2014] [gym sanctioned for failing to preserve allegedly defective treadmill despite preparing and forwarding to legal department a claims defense form]; Jamindar v. Uniondale Union Free School Dist., 90 AD3d 610, 611–612 [2d Dept 2011] [as defendant's prompt communication to liability insurance carrier following accident evinced its anticipation of litigation, its disposal of subject scissor lift warranted sanction of adverse inference] ). And, in our litigious society, any commercial enterprise in Manhattan would anticipate a lawsuit in the circumstances presented here. (See eg Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 13 AD3d 227, 230 [1st Dept 2004], revd 5 NY3d 742 [2005],quoting Vradenburg v. Prudential Prop. & Cas. Ins. Co., 212 A.D.2d 913, 914 [3d Dept 1995] [“In today's litigious society, it seems that a lawsuit is reasonably foreseeable whenever an injury occurs, and property owners are routinely brought into civil actions even though their only connection with an injury is their misfortune of owning the property where the injury occurred”] ).
As plaintiff's expert opined that an examination of the shattered glass would have enabled him to determine whether and how much the glass had degraded before the accident, thereby indicating that a photograph would not serve the same purpose, plaintiff has established that the glass constitutes probative evidence. (Cf. Pennachio, at *3 [plaintiff's expert's contention that examination of discarded glass jar would have allowed her to opine on how long it had been in a damaged condition was disputed by defendant's expert; consequently, triable issues existed as to whether defendant actually destroyed relevant evidence; jury should be instructed accordingly] ). However, plaintiff does not deny that an inspection of other original shower doors in the hotel would assist her. Therefore, a sanction is not appropriate. (See Palomo v. 175th St. Realty Corp., 101 AD3d 579, 581 [1st Dept 2012] [plaintiff's motion to strike defendant's answer properly denied as plaintiff not deprived of ability to prove case and did not seek lesser sanction] ).
B. Duschqueen
1. Liability to plaintiff
One who contracts to render services may be held liable in tort to third parties for undertaking to render services and then negligently creating or exacerbating a dangerous condition. (Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 142 [2002] ). Consequently, a contractor establishes, prima facie, its entitlement to summary judgment by submitting evidence that it neither created nor exacerbated the dangerous condition. (Bodenmiller v. Thermo Tech Combustion, Inc., 80 AD3d 719 [2d Dept 2011] ). A mere act of neglect, or failure to exercise due care, does not, however, suffice. It must be shown that the defendant's actions or inactions actually created or exacerbated a dangerous condition. (See Stiver v. Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007];Church v. Callanan Indus., 99 N.Y.2d 104, 112 [2002] ).
As triable issues exist as to whether Duschqueen installed a bar that could repeatedly come into contact with the wall (supra, IV .A.1.), triable issues exist as to whether Duschqueen created a dangerous condition. (See Grant v. Caprice Mgt. Corp., 43 AD3d 708 [1st Dept 2007] [triable issues as to whether contractor installed window with defective parts, thereby negligently creating or exacerbating a dangerous condition]; Bienaime v. Reyer, 41 AD3d 400 [2d Dept 2007] [triable issues as to whether contractor repaired machine without referencing electrical diagram and failing to perform test run, thereby rendering machine “more dangerous”]; Prenderville v. International Serv. Sys., Inc., 10 AD3d 334, 338 [1st Dept 2004] [triable issues as to whether defendants' snow removal created slushy substance on curb cut, thereby creating inference that they either created or exacerbated dangerous condition] ).
2. Plaintiff's cross motion for an order imposing a sanction for spoliation
Duschqueen had a duty to preserve its records once it was served with plaintiff's pleadings. (Cf. Baldwin, 58 AD3d at 485 [defendant on notice upon receiving plaintiff's pre-action letter] ). Veras's failure to preserve any of the documents concerning the Mandarin installation project leaves plaintiff without any of the specifications or designs which could prove that the bar was positioned in a manner permitting it to come into contact with the wall, and Veras offers no evidence that he tried to remove Duschqueen's records before he was locked out, an eventuality that must have been apparent to him. However, as several witnesses offer varying recollections of the configuration of the bar on the door, thereby providing some evidence of the actual configuration, and, as Veras was neither contumacious nor in violation of any court order, Duschqueen's answer should not be stricken. Rather, an adverse inference charge is appropriate in these circumstances (see Suazo v. Linden Plaza Assoc., L.P., 102 AD3d 570, 571 [1st Dept 2013] [while defendants spoliated video, plaintiff able to present at trial probative testimony of non-party witnesses; adverse inference appropriate]; Cuevas v. 1738 Assoc., LLC, 96 AD3d 637, 638 [1st Dept 2012] [plaintiff otherwise able to substantiate claim through deposition testimony] ), the contours of which are better determined by the trial court.
C. Bovis
One who contracts to render services may be held liable for negligently creating or exacerbating a dangerous condition. (Supra, IV.B.1.). Here, if plaintiff's accident was the result of the shower door bar repeatedly hitting the wall, liability cannot be imposed for Bovis's failure to correct or inspect Duschqueen's installation of the shower door in room 4606. (See Stiver, 9 NY3d at 257 [allegedly negligent inspection of vehicle did not create or exacerbate dangerous condition; vehicle was not less safe prior to inspection]; Church, 99 N.Y.2d at 112 [contractor's failure to install guardrail was negligent; did not create or exacerbate dangerous condition]; Izzo v. Proto Constr. & Dev. Corp ., 81 AD3d 898, 899 [2d Dept 2011] [failure to use protective sealant did not create or exacerbate dangerous condition]; Dannenbaum v. Rotterdam Sq., 6 AD3d 1045, 1047 [3d Dept 2004] [failure to use a particular type of joint during construction which resulted in uneven sidewalk did not create or exacerbate dangerous condition] ).
In Scansarole v. Madison Sq. Garden, L.P., the defendant construction manager denied liability for a defective glass panel on the ground that it installed the panel pursuant to plans and specifications provided by another party. The court held that triable issues existed as to whether the plans were so patently defective that they should have put the defendant on notice that installing the panel according to the plans would likely cause injury. (24 Misc.3d 1246 [A], 2009 N.Y. Slip Op 51895[U], at *10 [Sup Ct, N.Y. County 2009] ). Here, by contrast, Sommer testified without dispute that if a shower door could touch the wall on opening it, it would not have passed inspection. Thus, Bovis's alleged approval of an allegedly defective door and failure to correct Duschqueen's allegedly defective installation would constitute an act of neglect at best, which constitutes an insufficient basis upon which to find it liable (see Church, 99 N.Y.2d at 112 [neglect insufficient] ), and no evidence is offered tending to prove that Bovis discharged its duties in reliance on specifications that clearly required that a door be defectively fitted and installed.
D. Old Castle
A party alleging a cause of action in strict products liability for a design defect must establish that the manufacturer breached its duty to provide a safe product when it marketed a product designed in an unreasonably safe manner, and that the defective design caused injury. (Hoover v. New Holland N. Am., Inc., 23 NY3d 41, 54 [2014] ). A party alleging a manufacturing defect must show that the product was unreasonably dangerous as a result of it failing to perform as intended, and that the defect caused injury. (See Caprara v. Chrysler Corp., 52 N.Y.2d 114, 128–29 [1981];Fitzpatrick v. Currie, 52 AD3d 1089, 1090 [3d Dept 2008] ).
Here, no evidence is offered that the glass supplied by Old Castle was defective. Rather, the defect is alleged to be the fitting and installation of the glass. Thus, Duschqueen's opposition to this motion, based on its concern that a jury could find it liable for installing an improperly tempered glass door, is unwarranted. Moreover, a conclusory assertion that the glass was improperly tempered has no probative value, especially as the expert's opinion is not that the glass was improperly tempered, but that it weakened and ultimately shattered due to repetitive contact with the wall, and other alleged impacts.
E. Res ipsa loquitur
Plaintiff does not dispute defendants' contention that their lack of exclusive control of the shower precludes an inference of negligence arising solely from the circumstances of the accident.
V. BOVIS'S AND MANDARIN'S MOTION FOR INDEMNIFICATION
Given the triable issues of fact as to whether plaintiff's injury arose or resulted from Duschqueen's installation (supra, IV.A.1.), indemnification will be addressed upon findings of liability, if any. (See Castro v. New York City Tr. Auth., 52 AD3d 213, 213–214 [1st Dept 2008] [unresolved issues as to exact cause of plaintiff's injury precluded summary judgment on indemnification claims]; Bennett v. Bank of Montreal, 161 A.D.2d 158, 160 [1st Dept 1990], lv denied 81 N.Y.2d 704 [1993] [issue of fact as to whether plaintiff's injuries caused by indemnitor's acts or omissions precluded summary judgment] ).
VI. CONCLUSION
Accordingly, it is hereby
ORDERED, that defendant Bovis Lend Lease LB., Inc.'s motion for summary judgment dismissing plaintiff Kathrin Freienstein's complaint against it is granted; it is further
ORDERED, that Bovis's motion for summary judgment on its contractual and common law indemnification causes of action as against defendant Duschqueen, Inc. is denied; it is further
ORDERED, that defendant Mandarin Oriental New York Hotel, LLC, Mandarin Oriental (New York) Inc., and Istithmar Columbus Centre's (Mandarin's) motion for summary judgment dismissing plaintiff's complaint is denied; it is further
ORDERED, that Mandarin's motion for summary judgment on its contractual and common law indemnification causes of action as against Duschqueen is denied; it is further
ORDERED, that third-party defendants Old Castle Building Envelope, Inc., f/k/a Old Castle Glass, Inc. and Old Castle Engineered Products, Inc.'s motion for summary judgment dismissing Duschqueen's third-party complaint is granted; it is further
ORDERED, that Duschqueen's motion for summary judgment dismissing plaintiff's complaint is denied; it is further
ORDERED, that plaintiff's causes of action premised on res ipsa loquitur is dismissed; it is further
ORDERED, that plaintiff's cross motion for spoliation sanctions against Mandarin and Duschqueen is granted only to the extent that an adverse inference instruction as to Duschqueen's spoliation of evidence shall be given at trial, the contours of which are to be determined by the trial court, and is otherwise denied; and it is further
ORDERED, that the Clerk of Trial Support shall schedule the matter for mediation.