Opinion
No. 2959 Index No. 154556/19 Case No. 2023-03651
10-31-2024
Frank Vaccaro, Plaintiff-Respondent, v. ESRT Empire State Building, L.L.C., et al., Defendants-Respondents, Bonten Media Group Inc., Defendant, Development Ventures Group, Inc., Defendant-Appellant. [And Another Action]
Cullen and Dykman LLP, New York (Michael E. Joseph of counsel), for appellant. Grandelli & Eskenasi, New York (D. Allen Zachary of counsel), for Frank Vaccaro, respondent. Leon R. Kowalski & Associates, Jericho (Mary C. Azzarretto of counsel), for ESRT Empire State Building, L.L.C. and Empire State Realty Trust, Inc., respondents.
Cullen and Dykman LLP, New York (Michael E. Joseph of counsel), for appellant.
Grandelli & Eskenasi, New York (D. Allen Zachary of counsel), for Frank Vaccaro, respondent.
Leon R. Kowalski & Associates, Jericho (Mary C. Azzarretto of counsel), for ESRT Empire State Building, L.L.C. and Empire State Realty Trust, Inc., respondents.
Before: Webber, J.P., Oing, Kapnick, Kennedy, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered May 3, 2023, which, to the extent appealed from as limited by the briefs, granted the cross-motion of defendants ESRT Empire State Building, LLC and Empire State Realty Trust, Inc. (collectively, ESRT) for summary judgment on its cross-claims as against defendant Development Ventures, Inc. for breach of a contractual insurance procurement clause and contractual indemnity and for spoliation sanctions against Development, and granted plaintiff's cross-motion for spoliation sanctions against Development, unanimously modified, on the law, to deny ESRT's cross-motion to the extent it sought summary judgment on its cross-claim against Development for breach of a contractual insurance procurement clause, and otherwise affirmed, without costs.
Plaintiff alleges that he was injured when he fell from an A-frame ladder that collapsed as he was standing on it. Supreme Court providently exercised its discretion in precluding Development from any use of the photographs of the ladder taken by its insurance carrier before Development's employees disposed of it. Under the circumstances presented, where the destruction of evidence was at least negligent, preclusion of evidence, rather than striking of the pleadings, was the appropriate sanction (see New York City Hous. Auth. v Pro Quest Sec., Inc., 108 A.D.3d 471, 473-474 [1st Dept 2013]). We reject Development's argument that it was not placed on notice that it should preserve the ladder, as Development was aware that plaintiff fell from the ladder and that there was a reasonable possibility of litigation regarding the incident (see Malouf v Equinox Holdings, Inc., 113 A.D.3d 422, 422 [1st Dept 2014]; Adrian v Good Neighbor Apartment Assocs., 277 A.D.2d 146, 147 [1st Dept 2000], lv dismissed, 96 N.Y.2d 754 [2001]).
Furthermore, ESRT established its entitlement to summary judgment on its contractual indemnity claim against Development. The indemnity provision in the lease between the parties was triggered because the accident occurred "in or about the [p]remises" (see Great N. Ins. Co. v Interior Const. Corp., 7 N.Y.3d 412, 417 [2006]). Development cannot defeat the motion by relying on the lease provision concerning ESRT's right of re-entry, as that provision requires a showing that ESRT was negligent and Development has offered no evidence in support of such a showing.
However, Supreme Court should have denied ESRT's motion to the extent it sought summary judgment on its breach of contract claim arising from the lease's requirement that Development purchase insurance in favor of ERST. Development's insurance policy contains a blanket additional insured endorsement satisfying the requirement (see Solorzano v Lophijo Realty Corp., 224 A.D.3d 487, 488 [1st Dept 2023]).