Huntley v Compare Foods
Annotate this CaseDecided on September 24, 2004
District Court of Nassau County, First District
TRACEY and STEVEN HUNTLEY, Plaintiff(s)
against
COMPARE FOODS and GREYBEN REALTY CORP., Defendant(s).
001386/03
Steven M. Jaeger, J.
The legal standard for summary judgment motions was articulated by the Appellate Division, Second Dept., in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d 880, 616 NYS2d 650, 651 (1994): "It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853, 487 NYS2d 316; Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State Bank of Albany v. McAuliffe, 97 AD2d 607, 467 NYS2d 944), but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a [*2]trial of the action (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923; Zuckerman v. City of New York, supra, 49 NY2d at 562, 427 NYS2d 595)".
The plaintiff alleges that she slipped and fell while shopping in the produce area of the defendants' supermarket when she stepped on what appeared to be juice from a tomato. In a case such as this, in order to establish a prima facie case of negligence, plaintiff must be able to demonstrate that the defendants created the condition which caused the accident, or that the defendants had actual or constructive notice of the same. (Price v. EQK Green Acres, L.P., 275 AD2d 737, 713 NYS2d 488 [2000]). To establish a "created" condition, it must be demonstrated that the defendants, and not an intervening factor (plaintiff herself, a shopper, delivery person), created the condition. (Cameron v. Bohack, 27 AD23d 362, 280 NYS2d 483 [1967]). It is well settled that to establish constructive notice, the allegedly defective condition must be "visible and apparent" and it must exist for a sufficient length of time prior to the accident to permit defendants' employees to discover and remedy it. (Gordon v. American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 [1986]). A "general awareness" of the existence of a dangerous condition is legally insufficient to constitute notice of the defective condition. (Piaquadio v. Recine Realty Corp., 84 NY2d 967, 622 NYS2d 493 [1994]).
There is no testimony or other evidence that the defendants created the condition or had actual notice of this alleged condition. Further, there is no evidence that establishes either directly or circumstantially that the alleged condition was apparent and visible and that it existed for a sufficient length of time prior to the plaintiff's accident to have allowed the defendants' employees to discover and remedy the condition as required by law. (Gordon v. American Museum of Natural History, supra). However, the case is complicated by the fact that defendants had a video tape and photographs of the plaintiff in the area of the alleged fall and they cannot be found. This spoliation issue is the subject of the plaintiff's cross-motion. The plaintiff argues therein that since the defendants lost the best evidence of what occurred, they should suffer the consequence of summary judgment and the striking of their Answer. The Court of Appeals made the rule on spoliation clear in Metlife Auto & Home v. Joe Basil Chevrolet, Inc., 1 NY3d 478, 775 NYS2d 754 [2004] when it stated:
"Separate and apart from CPLR 3126 sanctions is the evolving rule that a spoliator of key physical evidence is properly punished by the striking of its pleading. This sanction has been applied 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." (citations omitted)
Based upon the testimony adduced at the depositions of the defendants, the plaintiff was videotaped in the produce area on the day and time in question. Such a tape would likely provide the identity of potential witnesses and provide vital information on the alleged defect (if it existed, who caused it, whether the condition was "visible and apparent", and how long it existed prior to the plaintiff's fall). The tape and photographs were in the exclusive custody and control [*3]of the defendants, were viewed by at least three individuals employed by or working for the defendants, and the defendants cannot explain what happened to either. In support of their motion, the defendants offer the affidavit of the store's general manager, Francisco Jorge, who states therein that "[A]t no time did [plaintiff] fall or slip." However, at his deposition, Mr. Jorge testified that he did not watch the entire tape and did not testify unequivocally that the plaintiff wasn't shown falling on the tape. (Jorge Transcript, p. 21, l. 6; p. 22, l. 8). Accordingly, the defendants are not entitled to the harsh and drastic relief they seek and the plaintiff is entitled to summary judgment based upon the facts and circumstances of this case.
The defendants are "spoliater[s] of key physical evidence" and the videotape and photographs at issue were lost during the litigation process and while defendant had notice or knowledge of this action and a duty to preserve these items. As such, they must now face the consequences of their actions. (Metlife, supra).
Based on the foregoing, the plaintiff is entitled to have the defendants' Answer stricken and to have summary judgment against the defendants.
The foregoing constitutes the Decision and Order of the Court.
So Ordered:
______________________
District Court Judge
Dated:September 24, 2004
cc:Feraru & Ajlouny, PC
Martin & Molinari, Esqs.
SMJ:kmh
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