Alfaro v Alvarez Corp.
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Alfaro v Alvarez Corp. 2013 NY Slip Op 32243(U) August 30, 2013 Sup Ct, Suffolk County Docket Number: 09-45563 Judge: Joseph Farneti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 09-45563 CAL No 13-0031OT SUPREME COURT - STATE OF NEm YORK I.A.S. PART 37 - SUFFOLK COUNTY a. *r *e. , .. PRESENT: Hon. MOTION DATE 4-4- 13 (#OO 1) MOTION DATE 5-9- 13 (#002) ADJ. DATE 5-30-1 3 Mot. Seq. # 001 - MD # 002 - XMD JOSEPH FARNETI __ Acting Justice Supreme Court X PORTNOY & PORTNOY, P.L.L.C. Attorney for Plaintiffs 3 15 Wal: Whitman Road, Suite 2 16 Huntington Station, New York 11746 ARNOLD ALFAKO, an infant by his parent and natural guardian, JOSE ALFARO and JOSE ALFARO, individually Plaintiffs, - against AHMUTY, DEMERS & MCMANUS, ESQS. Attorney for Defendants 200 I.U. Willets Road Albertson, New York 11507 - ALVAREZ CORPORATION, ALVARE:Z LAUNDRY CORPORATION and CECIL10 ALVAREZ, Defendants. X Upon the following papers numbered 1 to 30 read on this motionksummarv judgment ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 13 ; Notice of Cross Motion and supporting papers 14 - 24 ; Answering Affidavits and supporting papers 25 - 26; 27 - 28 .; Replying Affidavits and supporting papers 29 - 30 ; Other -; (adafter x h ) is, it ORDERED that this motion by defendants for summary judgment dismissing the complaint against them is denied; and it is further ORDERED that this cross-motion by plaintiffs for an Order, pursuant to CPLR 3 126, striking the defendants answer for spoliation of evidence or, in the alternative, for a negative inference against defendants at trial, is denied. This is an action to recover damages, personally and derivatively, for injuries allegedly sustained by infant plaintiff Arnold Alfaro, then five years old, on March 28, 2008, when he slipped and fell on water that was on the floor of a laundromat in Huntington Station, hew York, owned and operated by [* 2] Alfaro v Alvarez Index No. 09-45563 Page No. 2 defendants. The gravamen of the complaint is that defendants were negligent in failing to properly maintain, manage and control the premises by permitting liquid to reinain on the floor, thereby creating a hazardous condition. Defendants now move for summary judgment dismissing the complaint against them on the grounds that they neither created the alleged dangerous condition nor had actual or constructive notice of the condition. In support, defendants submit, inter alia, the pleading,$,the bill of particulars, and the deposition testimony of infant plaintiff Arriold Alfaro, defendant Cecilio Alvarez, and non-party witnesses Glenda Palma, Robin Alfaro, and Francisco Guevara. At his examination before trial, infant plaintiff Arnold Alfaro testified to the effect that on the day of the accident, he went to defendants laundromat with his mother and brother at around 5:OO p.m. While his mother was doing her laundry, he followed his brother, walking towards the store within the building. He slipped on water near a washing machine and fell forward, causing his right hand to go under the machine. When he got up off the ground, the left side of his shirt and pants were wet, and his hand started to bleed. Prior to the accident, he was looking straight ahead, and did not see water on the floor. He stated that before he fell, he was not running, skipping or jumping. At his deposition, Robin Alfaro testified to the effect that he is a brother of infant plaintiff Arnold Alfaro. At the time of the subject incident, he was eight years old. As he was walking towards his mother in the laundromat, his brother Pmold Alfaro was behind him. When he heard his brother scream, he turned around and saw his brother getting up. He observed blood on his brother s hand, and water on the floor where his brother fell. The water was described as being clear, and appeared to be a big puddle. Robin Alfaro stated that he saw the water for the first tinie right before his brother fell. At her deposition, Glenda Palma testified to the effect that on the day of the accident, she and her two sons, Arnold Alfaro and Robin Alfaro, entered the laundromat through a rear entrance from the parking lot. As she went to a washing machine in the middle, her two sons went to see the candy machine in the front entrance. When her sons came back to her to as <her for money, the subject accident happened. She did not see Arnold Alfaro fall, but heard him scream and cry. She stated that although her sons told her about water, she did not actually see the w2ter on the ground. At his deposition, defendant Cecilio Alvarez testified to the e Ffect that he owned the subject laundromat with his two sisters, Edis Alvarez and Maria Baptista, and that he sold the laundromat in 201 1. On the afternoon of the accident, MI-.Alvarez left his brother 13-ancisco Guevara in charge of the laundromat and had asked him to watch the machines and the cashier. Approximately 20 minutes later, Mr. Alvarez received a phone call from Mr. Guevara and learned of the subject accident. When Mr. Alvarez returned to the laundromat, Mr. Guevara showed him where the accident supposedly happened, and there were small droplets of blood thereon. Mr. Guevara told MI. Alvarez that he mopped the portion of the floor after the accident. Mr. Alvarez testified that the cashier would be in charge of walking around the laundromat and checking the floor. He testified that although there were four or six [* 3] Alfaro v Alvarez Index No. 09-45563 Page No. 3 cameras at the premises on the day of the accident, and the camera systems were working, he had no recollection as to whether anybody looked at the recordings of that day. He added that approximately a month before the closing of the sale of the laundromat, the camera sjrstems were broken, and he did not fix them. After he sold the laundromat, he did not keep any of the video equipment or recordings from the premises. At his deposition, Francisco Guevara testified to the effect th,at on the day of the accident, Mr. Alvarez had left him in charge of the laundromat and went out. Before Mr. Alvarez left, he walked around the laundromat to check everything. After Mr. Alvarez left, Mr. Guevara went out to take out the garbage. He walked around and checked the premises. He did not notice any soap, papers or anything on the floor. When Mr. Guevara was situated by the register in the fi-ont of the laundromat, he saw five or six children running in front of him. Then, he heard one of them crying, but he did not witness the accident. When he cleaned up the floor, he was told by people in the: laundromat that one of the children who were running and playing fell on the floor and hurt himself on a can he had in his hand. While cleaning up the blood on the floor, he observed neither any cans or objects nor any water on the floor in the vicinity of where the accident occurred. While, to prove aprima facie case of negligence in a slip/trip and fall case, a plaintiff is required to show that defendant created the condition which caused the accident or that defendant had actual or constructive notice of the condition (see Williams v SNS Realty o Long Is., 70 AD3d 1034, 895 f NYS2d 528 [2d Dept 2010]), the defendant, as the movant in this case, is required to make apvima facie showing affirmatively establishing the absence of notice as a matter Df law (see Kucera v Waldbaums Supermarkets, 304 AD2d 531, 758 NYS2d 133 [2d Dept 20031; Dwoskin v Burger King Corp., 249 AD2d 358, 671 Nk S2d 494 [2d Dept 19981). Liability can be predicated only upon failure of the defendant to remedy the danger after actual or constructive notice of the condition (see Piacquadio v Recine Realty Corp. 84 NY2d 967, 622 NYS2d 493 [ 19941). Furthmnore, whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury (see Clark v AMF Bowling Ctrs., Inc., 83 AD3d 761,921 NYS2d 273 [2d Dept 201 11; Moons v Wade Lupe Constr. Co., 24 AD3d 1005,805 NYS2d 204 [3d Dept 20051; Fasano v Green-Wood Cemetery, 21 AD3d 446, 799 NYS2d 827 [2d Dept 20051). Here, defendants have failed to establish their entitlement to judgment as a matter of law. The deposition testimony of infant plaintiff, Glenda Palrna, Robin Alfaro, and Francisco Guevara conflict as to the happening of the accident (see Viggiano v Camara, 250 AD2tl836,673 NYS2d 714 [2d Dept 19981). There are questions of fact as to how the accident happened; whether a dangerous condition existed on the floor of the subject laundromat so as to create liability on the part of defendants; whether they had actual or constructive notice of water on the floor (see Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430, 843 NYS2d 237 [lst Dept 20071); whether they exercised reasonable care under the circumstances (see McCummings v New York City Tr. Auth., 81 NY2d 923, 597 NYS2d 653 [ 19931; Basso u Miller, 40 NY2d 233, 386 NYS2d 564 [ 19761); and whether infant plaintiff was comparatively [* 4] Alfaro v Alvarez Index No. 09-45563 Page No. 4 negligent (see Bruker v Fischbein, 2 AD3d 254, 769 NYS2d 34 [ 1st Dept 20031). Accordingly, defendants motion for summary judgment is denied. Plaintiffs cross-move for an Order, pursuant to CPLR 3 126, sl.riking the defendants answer for spoliation of evidence or, in the alternative, for giving a negative inference charge against defendants at trial. Plaintiffs submit a letter dated October 5 , 201 1, from their attorneys to defendants attorneys, requesting any photographs, videos or other media ( Media ) depicting the premises at the time of the subject accident. Plaintiffs also submit a letter dated October 25, 201 I, from defendants attorneys to plaintiffs attorneys, indicating that defendants were not in possession of any photographs or video depicting the premises on the date of the accident. Plaintiffs submission includes a letter dated December 7, 201 1, from defendants attorneys to plaintiffs attorneys, stating that neither defendants nor their attorneys were in possession of any photographs or video. In opposition, defendants contend that there existed no such video recordings, although Mr. Alvarez testified at his deposition that the subject laundromat had a video recording system. Defendants also contend that Mr. Alvarez testimony does not indicate that he acmally reviewed any video recordings that depicted the subject accident. Furthermore, defendants contend that they did not intentionally or negligently destroy the evidence. To impose the drastic remedy of striking a pleading pursuant to CPLR 3 126, there must be a clear showing that a party s failure to comply with discovery demands was willful, contumacious, or in bad faith (see CPLR 3126; Mylonas v Town of Brookhaven, 305 ACQd 561, 759 NYS2d 752 [2d Dept 20031). Under the common-law doctrine of spoilation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the nonresponsible party of the ability to prove its claim or defense, the responsible party may be sanctioned (see Coleman v Puinam Hosp. Ctr., 74 AD3d 1009, 903 NYS2d 502 [2d Dept 20101). The court has discretion to imposc sanction for the spoliation of evidence by striking a party s pleadings or instructing the jury that it may draw negative inference from the missing evidence (see CPLR 3 126; PJI3d 1:77 [2003]; Lawrence Ins. Group v KPMG Peat Marwick, 5 AD3d 918,773 NYS2d 164 [3d Dept 20041). A defendant who destroys documents in good faith and pursuant to normal business praclice should not be sanctioned unless the defendant is on notice that the evidence might be needed for future litigation (see Ravnikar v Skyline Credit-Ride, Inc., 79 AD3d 1118,913 NYS2d 339 [2d Dept 20101; Lawrence Ins. Group v KPMG Peat Marwick, supra). Here, there is simply no evidence that defendants deliberately and intentionally discarded or destroyed evidence or otherwise thwarted the plaintiffs attempts at disclosure (see Abbadessa v Sprint, 291 AD2d 363,736 NYS2d 880 [2d Dept :2002]; Herd v Town o Pawling, 244 AD2d 317,663 NYS2d f 665 [2d Dept 19971; Goens v Vogelstein, 146 AD2d 606, 536 NYS2tl525 [2d Dept 19891). Defendants may not be compelled to produce or sanctioned for failing to produce information which they do not possess (see Sagiv v Gainache, 26 AD3d 368, 810 NYS2d 481 [2d Clept 20061). Nor does the record demonstrate that the loss of the video recording deprives plaintiffs of a means to present their claim (see Geffner v North Shore Univ. Hosp., 57 AD3d 839, 871 NYS2d 617 [2d Dept 20081). In particular, [* 5] Alfaro v AIvarez Index No. 09-45563 Page No. 5 plaintiffs spoliation claims are unsupported by competent proof establishing that the video recordings are of significance (see Gomez Y Metro Terms. Corp., 279 AD2d 550, 719 NYS2d 283 [2d Dept 20011). Accordingly, plaintiffs cross-motion as to the issue of spoliation of evidence is denied. / Dated: August 30, 2013 (/c+fhn& Justice Supreme Court FINAL DISPOSITION X NON-FINAL DISPOSITION
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