AJAL, L.P. v Macak

[*1] AJAL, L.P. v Macak 2013 NY Slip Op 52239(U) Decided on December 31, 2013 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570188/13.

AJAL, L.P., Petitioner-Landlord-Respondent, - -

against

Leszek Macak and Ewa Macak, Respondents-Tenants, -and- Maciej Macak, Respondent-Undertenant-Appellant.

Respondent Maciej Macak appeals from (1) an order of the Civil Court of the City of New York, New York County (Jack Stoller, J.), dated December 27, 2012, which granted petitioner's motion to strike the answer and denied respondent's cross motion for summary judgment dismissing the petition in a holdover summary proceeding, and (2) a final judgment (same court and Judge), entered on or about January 30, 2013, after inquest, which awarded possession to petitioner.

Per Curiam.

Final judgment (Jack Stoller, J.), entered on or about January 30, 2013, reversed, without costs, and answer reinstated. Appeal from order (Jack Stoller, J.), dated December 27, 2012, dismissed, without costs, as subsumed in the appeal from the final judgment.

We agree with the motion court that a spoliation sanction was warranted based upon respondent-appellant's failure to preserve his now expired U.S. passport, in the face of the court's order directing its production. However, the extreme sanction of striking respondent's answer was unwarranted in the circumstances here present, since the record contains no indication that the unavailability of the passport left petitioner without the means to prove its possessory claim or counter appellant's succession defense (see generally Melcher v Apollo Medical Fund Management L.L.C., 105 AD3d 15, 23-24 [2013]; Jennings v Orange Regional Med. Ctr., 102 AD3d 654 [2013]). A lesser sanction such as an adverse inference, if sought at trial, would be more appropriate (see Alleva v United Parcel Serv., Inc., 102 AD3d 573 [2013], lv dismissed 21 NY3d 906 [2013]).

Though appellant was originally named as "John Doe," he sustained no discernible prejudice as a result of this designation. To the contrary, respondent was fairly apprised that he was the party the proceeding was intended to affect, answered the petition, and defended the [*2]proceeding on the merits. In this posture, petitioner was properly permitted to amend the caption to reflect appellant's true name (see ICD Group Intern. Ltd. v Achidov, 284 AD2d 244 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 31, 2013