Opinion
2013-03-7
Andrea GILCHRIST, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents, 57 115 Assoc., et al., Defendants.
G. Wesley Simpson, Brooklyn, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for respondents.
G. Wesley Simpson, Brooklyn, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for respondents.
TOM, J.P., SWEENY, MOSKOWITZ, RENWICK, CLARK, JJ.
Order, Supreme Court, New York County (Geoffery D. Wright, J.), entered September 6, 2011, which, in this negligence action arising from plaintiff's fall from a chair, granted the motion of defendants City of New York and City of New York Human Resources Administration for summary judgment dismissing the complaint and denied plaintiff's cross motion to strike defendants' pleadings, unanimously reversed, on the law, without costs, defendants' motion denied, and plaintiff's cross motion granted to the extent of directing an adverse inference charge and preclusion of defendant's testimony as to the chair's condition.
The trial court should have imposed the sanction of an adverse inference charge because the chair was not the sole means to establish plaintiff's claim ( see Alleva v. United Parcel Serv., Inc., 96 A.D.3d 563, 564, 947 N.Y.S.2d 438 [1st Dept. 2012];Mendez v. La Guacatala, Inc., 95 A.D.3d 1084, 1085, 944 N.Y.S.2d 313 [2d Dept. 2012] ). Further, the court should have precluded defendant from offering any evidence at trial as to the chair's condition. Plaintiff's notice of claim specifically requested preservation of the chair, and defendants' failure to preserve it constitutes spoliation. Plaintiff's testimony that the chair was not broken would not have precluded an expert from finding a latent defect upon examination during the discovery process. Spoliation of the chair prevented the plaintiff from providing incisive evidence. Plaintiff's testimony adduced at trial could have allowed a jury to find that a defective condition or an improper use of the chair caused her accident and resulting injury. As such, an adverse inference charge along with the preclusion against defendant is a reasonable sanction considering the prejudice to the plaintiff ( see e.g. Baldwin v. Gerard Ave., LLC, 58 A.D.3d 484, 485, 871 N.Y.S.2d 121 [1st Dept. 2009] ).
Given the sanction of an adverse inference charge along with the preclusion of testimony regarding the condition of the chair, defendants' motion for summary judgment is denied ( see Alleva v. United Parcel Service, Inc., 102 A.D.3d 573, 959 N.Y.S.2d 144 [1st Dept. 2013];see also Wood v. Pittsford Central School Dist., 2008 WL 5120494 [2d Cir.2008];Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 107–111 [2d Cir.2001] [defendants' spoliation of evidence was adequate grounds for denying defendants' summary judgment motion]; Kronisch v. United States, 150 F.3d 112, 125–128 [2d Cir.1998] ). Moreover, based on this record, triable issues of fact exist as to whether defendant provided an inappropriate chair with wheels on a slippery floor.