Kelley v Empire Roller Skating Rink, Inc.

[*1] Kelley v Empire Roller Skating Rink, Inc. 2006 NY Slip Op 50287(U) [11 Misc 3d 1059(A)] Decided on March 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 3, 2006
Supreme Court, Kings County

Benton Kelley and SANDRINE KELLEY, Plaintiffs,

against

Empire Roller Skating Rink, Inc. and UNITED SKATES OF AMERICA, INC., Defendants.



20371/2004



ATTORNEYS FOR THE PLAINTIFF

Breadbar, Garfield & Schmelkin

11th Park Place, 10th Floor

New York, NY 10007

ATTORNEYS FOR THE DEFENDANT

Aliano & Associates, PC

265 Post Avenue, Suite 120

Westbury, NY 11590

Martin Schneier, J.

Plaintiff Benton Kelley ("Kelley") injured his ankle when he fell at the defendants' roller rink on April 20, 2003. Kelley was treated by Emergency Medical Services personnel who removed the skate by cutting the lace and, transported plaintiff to a hospital by ambulance. At the time of the accident, Kelley signed a statement which read: "[plaintiff] stated that he was skating and fell causing injury to his left ankle." Defendants' Risk Manager, Valencia David ( David"), examined the skates and prepared a [*2]Roller Skate Inspection Report which indicated that there was no problem with the skates.

Plaintiff commenced this action in June of 2004, alleging that Kelley's fall was caused by a defective roller skate that he rented from the defendants. At a deposition on April 25, 2005, David testified that the skates were given to a manager in case there was a claim by plaintiff. On August 19, 2005, defendants were ordered to produce the skates for inspection. On September 6, 2005, Ms.David signed an affidavit which purported to correct her deposition. In her affidavit, David states that it is now her recollection that the skates were not preserved because the plaintiff did not claim that there was a problem with them. Plaintiffs now move for sanctions against defendants on the ground of spoliation of evidence.

The Court will first address the propriety of the corrections to the deposition transcript. Section 3116(a) of the CPLR states: "[n]o changes to the transcript may be made by the witness more than sixty days after submission for examination." In this case, the transcript was submitted on May 31, 2005. The proposed changes are, therefore, untimely and, accordingly, are stricken.

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. 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). Nevertheless, the circumstances of an accident may give rise to "enough of an indication for defendants to preserve [the] physical evidence for a reasonable period of time" (Adrian v. Good Neighbor Apartment Associates, 277 AD2d 146).

In the case before the Court, the defendants maintain that the skates were returned to service pursuant to their normal business practice. Thus, the Court must consider whether the circumstances of the accident gave rise to a duty to preserve the skates. The defendants operate a roller skating rink, employ a risk manager and required plaintiff to sign an assumption of liability form (which has been preserved). From these facts it may be inferred that defendants are cognizant of the possibility of litigation. Furthermore, Kelley was transported from the defendants' roller rink by ambulance. Under these circumstances, the Court finds that the defendant had a duty to preserve the skates for a reasonable period of time. Because [*3]the defendants maintain in their affidavits that they did not preserve the skate for any period of time, the Court finds it is unnecessary to determine what length of time is reasonable.

In determining the appropriate sanction, the Court notes that the spoliation of the evidence was negligent, not intentional. Furthermore, the plaintiffs took no action which would have caused defendants to preserve the skates. Accordingly, the motion to sanction the defendants for spoliation of evidence is granted to the extent that the defendants are precluded from offering evidence regarding the skates after they were removed from the plaintiffs foot. In addition, the proposed changes to the deposition transcript are stricken and the plaintiff's time to file a note of issue is extended to June 15, 2006.

This shall constitute the Decision and Order of the Court.

______________________________

J.S.C.