Maxine Lovell v United Skates of America, Inc.

Lovell v United Skates of Am., Inc. 2006 NY Slip Op 03055 [28 AD3d 721] April 25, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

Maxine Lovell, Respondent,
v
United Skates of America, Inc., Doing Business as USA Empire Roller Skating Center, Appellant.

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In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Ruditzky, J.), dated May 5, 2005, which granted the plaintiff's motion pursuant to CPLR 3126 (3) to the extent of precluding it from offering evidence with respect to the condition of the subject roller skates.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, and the motion is denied.

The Supreme Court improvidently exercised its discretion in imposing a sanction of preclusion based on the alleged spoliation of evidence because the plaintiff did not establish that the defendant intentionally or negligently failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation (see Goll v American Broadcasting Cos., Inc., 10 AD3d 672, 673 [2004]; Andretta v Lenahan, 303 AD2d 527, 528 [2003]). Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.