Cuevas v 1738 Assoc., LLC

Cuevas v 1738 Assoc., LLC 2012 NY Slip Op 05108 Decided on June 26, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 26, 2012
Gonzalez, P.J., Tom, Andrias, Acosta, Freedman, JJ.
8025 17673/07

[*1]Aida Cuevas, Plaintiff-Appellant,

v

1738 Associates, LLC, et al., Defendants-Respondents.




Lester Schwab Katz & Dwyer, LLP, New York (Michael P.
Stieglitz of counsel), for appellant.
Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L.
Gokhulsingh of counsel), for respondents.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered June 20, 2011, which denied plaintiff's motion for an order "striking defendants' answer and/or directing a verdict in favor of plaintiff and/or finding as a matter of law that defendants had notice of the dangerous condition sufficient to establish liability" due to spoliation of evidence, unanimously affirmed, without costs.

The court providently exercised its discretion in denying plaintiff's motion for spoliation sanctions. Plaintiff alleges that defendants destroyed or lost video surveillance tapes that supposedly recorded her slip and fall on a wet substance in the building vestibule. Given the lack of concrete evidence that the accident was even recorded in the first place and that plaintiff is still able to pursue her claim through the deposition testimony of a non-party witness, the court had a reasonable basis for denying spoliation sanctions (see Scansarole v Madison Sq. Garden, L.P., 33 AD3d 517, 518 [2006]; Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58, 60 [2002]; Christian v City of New York, 269 AD2d 135 [2000]).

We have reviewed the remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 26, 2012

DEPUTY CLERK