Sanders v. 210 N. 12TH St., LLC
| Decision Date | 10 April 2019 |
| Docket Number | Index No. 510620/16,2017–08222 |
| Citation | 171 A.D.3d 966,98 N.Y.S.3d 118 |
| Parties | Michael SANDERS, Respondent, v. 210 N. 12TH STREET, LLC, Appellant. |
| Court | New York Supreme Court — Appellate Division |
171 A.D.3d 966
98 N.Y.S.3d 118
Michael SANDERS, Respondent,
v.
210 N. 12TH STREET, LLC, Appellant.
2017–08222
Index No. 510620/16
Supreme Court, Appellate Division, Second Department, New York.
Argued—December 17, 2018
April 10, 2019
O'Connor Redd, LLP, Port Chester, N.Y. (Kara Neal, Joseph M. Cianflone, and Nicole Salerno ), for appellant.
Mirman Markovits & Landau, P.C., New York, N.Y. (Ephrem J. Wertenteil of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that on the Court's own motion, the notice of appeal
from so much of the order as referred that branch of the plaintiff's motion which was for an adverse inference charge to the Justice of the Supreme Court presiding at trial is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is reversed insofar as appealed from, on the law, and those branches of the plaintiff's motion which were pursuant to CPLR 3126 to impose sanctions on the defendant are denied; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
On January 26, 2016, the plaintiff allegedly was injured when he slipped and fell on a patch of ice as he was exiting the defendant's building in Brooklyn after making a delivery to a resident therein. About two or three days after the accident, the plaintiff's employer contacted the property manager of the defendant's building and requested a copy of any video surveillance footage depicting the plaintiff's accident for the purpose of verifying the plaintiff's excuse that he was absent from work because he was injured. The property manager sent to the plaintiff's employer, via electronic mail, an approximately two-minute clip of the footage depicting the
plaintiff's fall. On June 22, 2016, the plaintiff commenced this action against the defendant to recover damages for personal injuries. After a preliminary conference order directing the defendant to respond to outstanding discovery demands, the defendant produced the two-minute clip of the video surveillance footage.
By notice of motion dated March 30, 2017, the plaintiff moved, inter alia, pursuant to CPLR 3101(i) to compel the defendant to produce all of the video surveillance footage taken on the date of the accident, or pursuant to CPLR 3126 to preclude the defendant from introducing evidence at trial of matters pertaining to any destroyed video surveillance footage or to direct that a negative inference charge be given against the defendant at trial on the ground of spoliation of evidence. In opposition, the defendant submitted the affidavit of its property manager, which stated that he only had a copy of the two-minute clip that he had previously e-mailed to the plaintiff's employer and that the remaining video surveillance footage was automatically deleted 30 days after the accident. The property manager averred that, when he viewed the footage, he did not think that the accident was serious, as he saw the plaintiff laughing with his coworker after the fall. For the first time in reply, the plaintiff produced an unsigned letter dated February 23, 2016, purportedly sent to the defendant by the plaintiff's
counsel, requesting that the...
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