Arnez v Duane Reade, Inc.

[*1] Arnez v Duane Reade, Inc. 2006 NY Slip Op 51586(U) [12 Misc 3d 1195(A)] Decided on May 3, 2006 Supreme Court, Richmond County Giacobbe, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2006
Supreme Court, Richmond County

Dawn Arnez, Plaintiff,

against

Duane Reade, Inc., Defendant.



101110/05

Anthony Giacobbe, J.

Upon the foregoing papers, plaintiff's motion to strike the answer on the ground of spoliation of evidence is decided as follows.

In this personal injury action, plaintiff alleges that on September 21, 2004, she tripped and fell in the front entrance vestibule of a Duane Reade store on Victory Boulevard in Staten Island, New York. Plaintiff testified at her deposition that the fall occurred when, upon entering defendant's premises, her foot "went under [a portion of] the rug" that was "pushed up," not "flat and leveled" with the floor. Similarly, defendant's store manager, Tatiana Lake, testified that when she inspected the area where plaintiff fell immediately after the accident (which occurred at approximately 2:47 p.m.), she observed that the corner of the entrance rug was flipped over.

In moving to strike defendant's answer, plaintiff points out that it is undisputed that the

accident was recorded by the store's surveillance camera, and that its manager, Ms. Lake, subsequently copied the portion of the videotape which depicted the accident and the preceding five minutes onto a "CD." According to Lake, upon viewing the tape, she observed that a woman entering the store with a baby carriage approximately two minutes prior to plaintiff's accident had caused the corner of the rug to flip over. However, it is now claimed that the "CD" copy cannot be located and it is conceded that the original video tape was reused in the normal course of defendant's business rather than preserved.

In view of the foregoing, plaintiff maintains that evidence of the condition of the rug throughout the entire day has been destroyed by defendant, and that such evidence constituted "the best evidence of notice of the [rug's] condition." It is also claimed that this spoliation of key evidence: (1) renders it impossible to prove that defendant had notice of the alleged hazardous condition; and (2) permits Lake to testify without fear of contradiction that when she inspected the store's entry-way on the morning of September 21, 2004, the alleged hazard did not exist.

In addition, plaintiff maintains that defendant's present inability to locate the "CD" constitutes a failure to comply with a court-ordered stipulation dated October 27, 2005, wherein defendant agreed to provide plaintiff with a copy of the "CD" purportedly memorializing plaintiff's accident.

It is well established that "a spoliator of key physical evidence is properly punished by the [*2]striking of its pleading***even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation" (Metlife Auto & Home v. Joe Basil Chevrolet, Inc., 1 NY3d 478, 483 [2004], citing DiDomenico v. C&S Aeromatik Supplies, Inc., 252 AD2d 41, 53 [2nd Dept. 1998]; see, Goll v. American Broadcasting Cos., Inc., 10 AD3d 672, 673 [2nd Dept. 2004]; Iannucci v. Rose, 8 AD3d 437, 438 [2nd Dept. 2004]).

Consonant with these cases, plaintiff has failed to establish that defendant at bar was on notice of the impending lawsuit at the time that the surveillance tape was destroyed (Iannucci v. Rose, supra; cf., Bear, Stearns & Co., Inc. v. Enviropower, LLC, 21 AD3d 855 [1st Dept.], app. dismissed, 6 NY3d 750 [2005]), or that it was otherwise duty-bound to preserve same (see, Metlife Auto & Home v. Joe Basil Chevrolet, Inc., supra at 484). Thus, even though the claimed spoliation could fatally compromise plaintiff's ability to prove, e.g., defendant's knowledge of a recurrent dangerous condition involving the entry-way rug (see, Batista v. KFC National Management Co., 21 Ad3d 917 [2nd Dept. 2005]; Erikson v. J.I.B. Realty Corp., 12 AD3d 344, 345 [2nd Dept. 2004]; Love v. Home Depot U.S.A., Inc., 5 AD3d 636, 637 [2nd Dept. 2004]; Clark v. Chau Shing Wong, 293 AD2d 640 [2nd Dept. 2002]), sanctions would be inappropriate here since the videotape was recycled in the normal course of defendant's business prior to notice of this litigation (see, Anthony v. Wegmans Food Markets, 11 AD3d 953 [4th Dept. 2004]; cf., Higgins v. Armored Motor Service of America, Inc., 13 AD3d 1087, 1088 [4th Dept. 2004]).

As for defendant's alleged inability to produce the "CD," there has been no showing that its failure was willful, contumacious or in bad faith (see, Anthony v. Anthony, 24 AD3d 694 [2nd Dept. 2005]; Sowerby v. Camarda, 20 AD3d 411 [2nd Dept. 2005]; Careccia v. Metropolitan Suburban Bus Authority, 18 AD3d 793 [2nd Dept.], lv dismissed, 5 NY3d 880 [2005]; Lanc v. Donnelly, 13 Ad3d 593 [2nd Dept. 2004], lv denied, 4 NY3d 707 [2005]; Castellano v. Mainco Elevator & Electrical Corp., 292 AD2d 556 [2nd Dept. 2002]). Nevertheless, in view of this failure, plaintiff will be permitted to introduce evidence of the "CD" recording at any ensuing trial and have the jury instructed in conformity with PJI 1:77 (2006) (see, Higgins v. Armored Motor Service Of America, Inc., supra at 1088).

Accordingly, it is

ORDERED, that the motion is granted to the extent indicated above; and it is further

ORDERED, that the balance of the motion is denied.

ENTER:

Dated: May 3, 2006________________________________

Anthony I. Giacobbe

Justice of the Supreme Court