Penofsky v Alexander's Dept. Stores of Brooklyn, Inc.

[*1] Penofsky v Alexander's Dept. Stores of Brooklyn, Inc. 2006 NY Slip Op 50186(U) [11 Misc 3d 1052(A)] Decided on February 14, 2006 Supreme Court, Kings County Schneier, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 14, 2006
Supreme Court, Kings County

Daniel Penofsky, Plaintiff,

against

Alexander's Department Stores of Brooklyn, Inc., Defendant.



38501/2003



APPEARANCES

ATTORNEYS FOR THE PLAINTIFF

LAZAROWITZ & MANGANILLO, LLP

2004 Ralph Avenue

Brooklyn, NY 11234

ATTORNEYS FOR THE DEFENDANT

Smith Mazure Director Wilkens Youg & Yagerman, P.C.

111 John Street, 20th Floor

New York, NY 10038-3198

Martin Schneier, J.

Plaintiff alleges that he was injured when he tripped and fell on the stairs in the defendant's mall. The defendant moves to dismiss on the grounds that it lacked notice of the defect and, that the defect was trivial in nature.

The alleged defect is a gouge in a stair nosing. The plaintiff testified at his deposition that the gouge was gritty and the stairs were free of debris. The Court finds that this testimony is sufficient to create and issue of fact regarding constructive notice. The Court finds that the photographs of the defect are sufficient to create an issue of fact regarding whether or not the gouges constituted a dangerous condition. Accordingly, the motion is denied.

Plaintiff cross-moves to strike the defendant's answer as a sanction for the spoliation of evidence. Spoliation occurs when a party intentionally destroys evidence or negligently destroys evidence that the party has a duty to preserve (Weiss v. Industrial Enterprises, LTD, 7 AD3d 518). A party has a duty to preserve evidence when it has notice of pending litigation. Notice of an accident may serve as notice of pending litigation and give rise to a duty to preserve evidence (Adrian v. Good Neighbor Apartment Associates, 277 AD2d 146). However, "[i]n the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices" (Conderman v. Rochester Gas & Elec. Corp., 262 AD2d 1068).

In this case, the evidence shows that the video cameras in the mall may have recorded the plaintiff's fall. However, the tapes were not saved and were recorded over, as is the defendant's normal business practice. After the fall, plaintiff spoke to a security guard in the mall. The plaintiff declined medical attention or transportation assistance and, thereafter, left the scene. Under these circumstances, the Court finds that the defendant was not under a duty to preserve the videotapes. Accordingly, the cross-motion is denied.

This shall constitute the Decision and Order of the Court.

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J.S.C. [*2]