Kekovic v 13th St. Entertainment, LLC

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Kekovic v 13th St. Entertainment, LLC 2011 NY Slip Op 33149(U) December 5, 2011 Sup Ct, NY County Docket Number: 116636/09 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNEDON 121812011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY ' PART Justice -EL Index Number : 116636/2009 INDEX NO. KEKOVIC, SlNlSA MOTION DATE VS MOTION SEQ. NO. 13TH STREET ENTERTAINMENT MOTION CAL. NO. SEQUENCE NUMBER. 001 - STRIKE I this ~. . - PAPERS NUMBERED ~- Notice ot Motion/ Order to snow r;auae Answering Affldavlts motion to/for - ATflaavlfS - Exhibits ... Exhlbits Replying Affidavits Cross-Motion: u Yes a No Upon the foregoing papers, it is ordered that this rnotlon Dated: u SALIANN SCARP L Check one: FINAL DISPOSITION Check if appropriate: r DO NOT POST 1 u SUBMIT ORDER/ JUDG. J . S. C. NON-FINAL D l k l T l O N n REFERENCE u SETTLE ORDER/ JUDG. [* 2] 11 ainti ff, Tndcs No.: 1 16636/2009 Subinission Date:8/17/1 I - against- Third- P arty P 1ai 11 ti r f, liides No.:S90392/20 10 - against- ALL SEASON PRO TEC IION SERVICES, TNC., I)ECTSTON AND ORDER For Ilefendant/ I hird-hi-ty I lainti I: T I lavkins Rosciilklcl Ritzert LSL Varriale, LLP 1065 Avenue or the Aiiici-ius, Suilc 800 Ncw York, NY 100 18 For Plaintiff: Wcisci- & Associiiks, 1,.1,.1 . I50 East 58 Street. 27Ih Floor Ncw Yoi-k, N Y I O 155 Papers consiclcred in I-cvicw or this motion to strikc the atiswer: Noticc oL Motion . . . . . . . . . . . . . 1 Aff in Support. . . . . . . . . . . . . . .2 AfT in Opp . . . . . . . . . . . . . . . . . . 3 Reply A K . . . . . . . . . . . . . . . . . .. 4 1-TON. SA1 ,IANN SCIARPIJLLA, J.: I [* 3] I n this action to recover for personal irijiiries, plaintiUSinisa Kekovic ( Kekovic ) , inovcs pursuant to C PLR 3 126 for an order strihing the answer of dcfendaiit 1 3Ih Street I3itcrtninment, T,LC d/b/a Kiss Kr. Fly Niglitcluli ( 13 Street ) on spoliation groi~rids, in or the nltcrnativc granting Kekovic ii ncgative inference against dcfcndant at the tiiiie of trial. I lijs action ariscs Ikoin personal in.ji1rics Kekovic allcges to liavc surfercd while a patron at tlic Kiss 6t Fly Nighlclul>(the iiiglitcl~rb ), owiicd by 13 Street. Kekovic alleges that oil Scptciiiber 20, 2009, wliilc a patron of the nightclub, he was struck on thc hcad and Fice by a bottle oI vodlca, causing liirii scvcrc and perinaiicnt personal injuries. Kckovic alleges that 13 Strcct was ncgligent in its owiicrship and operation ofthe nightclub, and that its security personnel wcrc ncgligcnt in allowing aii intoxicated patron to rciiiain on the premises while visibly intoxicated. Kelwvic also allcgcs that alcohol was scrvcd to his alleged attackcr, and that 13 Strect over-served lliis person, whoin 13 Street should tinve lw own was v i s i b 1y i r i to x i ca t c d. 0 1 1 Scptcmbcr 22,2009, KelLovic s counsel sent cnrrcspondence to 1 31hStreet, putting thein on notice 01- thc pcnding litigation, arid to prcsci-vc [he surveillaiicc video froin I0:OO pi11 Scplciiibci- 19, 2009 throirgh 4:OO ani Septein ber 20, 2009. O n Scptcnibcr, 24, 2009, Ryan Tarantino, 13 Street s Director of Operations ( Tarantino) sent 21 letter to Kckovic s coirnscl, along with a DVL) ofthc surveillance file for tlic tinic period rcqucstcd. 2 [* 4] Kekovic asserts that thc DVD sent by Tarantino was not orthe night ofthc incident. On April 19, 20 1 I , Kckovic served OTI 13 Street n notice lor Discovery and Inspection rcq[iesting the video sut-vcillaricc lor the night of the incidcnt. 13 Street responded that they arc n o t in possession 01video of tlic subject premises on the night of the alleged incident. Kekovic now assei-ts that 13 Street willfully or negligently destroyed key cvideiice with knowleclgc that they were being sued. In opposition, I 31h Street submits the aI fidavit of Taranlino, who attests that he providcd Kekovic with [lie rquestccl I)VT) 011 Scptcmher 24, 2009. I n addition, 13 Street submits the transcript o r Kekovic s deposition, at which Kckovic testi tied that after thc incidcnt at the niglitclub, hc reported it to tlic police. Kehovic further testificd that the policc went tu the niglitclub, and were checking out security cameras to see what happcncd. Kckovic also testified that he was told by the police (hat they conllscated tlic video fi.oin thc nightclub, arid told h i m ihat the picture on the video was not clcar. I)i scu ss i on Spoliation is the destruction ofcvidcncc. Although originally defined iis intentioiial destruction or evidence arising out of ii party s bad hith, the Inw concerning spoliation has been estcndcd to the noninteiitional destruction of cvidcnce. , . . llndcr New York law, spoliation sanctions are appropriate whcrc a litigant, intentioilally or negligently, disposes of crucial i t e m olevidericc involvcd in a11 accidcnt belure the adversary has an opportiinity to inspect them. . . . 1 Djismissal [may1 be a viable reiiiedy i or loss o r a key piccc orevidencc 3 [* 5] that thereby prccludcs inspcction. Kirkluntiv IVCJM~ City Hous. Autlz ,236 A.13.2d 170, York 173 (lSt Lkp t 1997). Neccxsary lo this burdcn is ii showi1Jg ofprc.judicc. Bulclwiiuz V . Gerard Avenue, LLC, 58 A.D.3d 484, 485 ( 1 Dep t 2009). [ Under CI I .R 3 126, ifa court llnds that liparty dc5troycd evidcnce thal ouglit to have bcen disclosed . , . , the court may make SIICJI orders wirh regard to the hilure or rcfusnl as arejust. Ovtcgcr v. C it} oj Now York, 9 N.Y .3d 69, 76 (2007). A party scelcing :i sanction pursiiant to C l r,I< 3 I26 such as preclusion or disinissal is rcqirired to demonstratc that a litigant, intentionally or ncgligcntly, disposc[d] of crucial ilerns or cvidcnce . . . betbrc: the adversary hafd] an opportunity to inspcct thcin. Kirsclren v. Mmino, 16 A.D.3cl 5 5 5 , 555- 556 (2d Dcpt 200s) (quoting Kirklund v,New I ork C ifir Hous . Autli. 236 A.D.2d 170, 173 (1 Dcpt 1907). Discovery sanctions havc also been eiiiployed against ;I litigant who had an opporlunity to safeguard cvidence but failed to do so. Sec c.g. Atniwis v. S lillnrp E ~ E c .C orp., ~. 304 A.13.2d 457 (1 Dcpt 2003), Iv ciciiicd 1 N.Y.3d 507 (2004). Ilowevt r, [wJherc : party did not discard crucial evidencc in mi cf hrl to frustrate i discovery, and canriol be presumed to be rcsponsible for the c1isappc:umce of such evidence, spoliation sanctions ;ire jnappropriate. S l i q v. Ilfiizer, Znr., 80 A.JI.3d 487, 688 (2d l k p l 201 1), quoting C cirderov. Mirecle C 7 d i C70rp.,5 I A.LI.3d 707, 709 (2d Dept 2008); sec nlso 0 R ~ i l lv. Yuvorskiy, 300 A.D.2d 456 (2d Dcpt 2002); McLautqhlin v. Brozrillet, 289 A.LI.2d y 46 1 (2d LIcpt 200 I ), 4 [* 6] Accordingly, the caiiclion of striking tlic answer is too severe wlicre, as lierc, Kelcovic h i l s to establish that 13 Strcct intentionally or negligently disposed of the surveillance DVL). It is not dispiited that 13 Strcct prcmiptly responded to Kekovic s rcqiicst for the suwcillancc video, althougli it appears that a L)Vn for thc wrong night was provided. Kekovic submits ;in attorney dljdavit, which states that the DVl) scrit hy Tarantino was riot tlic DVL) for the night of the incident. However, it appcars that Kekovic did not promptly iiispcct the DVD that was sent by Tarantino on Scpternbcr 24, 2009, bccause hc waited almost nineteen ( I 9) months until April 19,201 I to serve its Noticc for Discovery and Inspection again requesting the surveillance video. While 13 Street has raised that possibility that the police may be in possession ofthc survcillance vidco for the night or tlic incident, asstiming the vidco n o longer csists both sides arc eq~inllyprejudiccd by its abscnce. I his, along with Kckovic s delay in scc attciiiptiiig to rclrieve the video Tnr thc correct night, Kekovic s 1.ailiirc to establish any culpable conduct on tlic part of 1 3 t h ~ Street, the motion to strike the answer, or in tlic altcrnative for an adverse inference is denied. Lastly, Kckovic s argunicnl that 13 Strccl should bc sanctioned because it dcslroycd thc video as part ol it s noriiial dociiiiient dcstructioii policy, instcad ofsccuring it pursuant to a litigation hold is unpcrsuasive. It is undisputed that both 13 Strcct and Kckovic Street providcd the requested video to Kekovic on September 29, 2009. belicvcd that I3+ 11 was Kckovic s ohligalion to rcvicw the DVI) i n a tiiiiely manner, and notify 13 Strcct of 5 [* 7] any problems or irregularities. If in Fdcl 13t" Strcet did destroy the surveillance footage, it did so while under the good faith imprcssion that it had already been provided to Kekovic. 'That Kckovic waitccl so long to iiolify 13"' Strcet that the LIVD produced was ofthe wrong night should not rcsult i n sanctions lo 13'" Strcct, 1 1 accordaiicc 1 with the loregoing, it is (_)l<I))T:RED that the inotion by pLiiiitifT Sinisa Kekovic to strike the niiswer of defeiidant 13"' Strcct Eiitcrtaininent, LLC' d/b/a Kiss & lily Niglitcliib on spoliation grounds, or in the altcrnativc granting Kckovic a ncgativc inference against defendant at the time of trial is denied. This conslitut-es the decision and order of the court. D at cd : cw York ENTER: :\: '

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