Albright v Coral Lafayette LLC

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Albright v Coral Lafayette LLC 2013 NY Slip Op 34199(U) January 22, 2013 Supreme Court, New York County Docket Number: 111576/2011 Judge: Louis B. York Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK; PART 2 ---------------------------------------------------------------------x DOROTHY ALBRIGHT, Plaintiff, -against.. Index No.: 111576/2011 CORAL LAFAYETTE LLC, CORAL BROOME STREET, LLC, CORAL REALTY, LLC, and CAFE LAFAYETTE INC., FI LED Defendants. ---------~---------------------------~-------------------------------}{ JAN 25 2013 NEW YORK COUNTY CLERK'S OFFICE YORK, J.: In this action in which plaintiff Dorothy Albright (plaintiff) alleges personal injuries as a result of a trip and fall at the entranceway of a restaurant, plaintiff moves, pursuant to CPLR 3216, to strike the answer of defendant _Cafe Lafayette, In~. (Cafe Lafayette) for failing, to . preserve a mat upon which plaintiff allegedly tripped. Plaintiff moves for an order precluding Cafe Lafayette from introducing any evidence regarding the condition of the mat, due to Cafe Lafayette's alleged destruction and spoliation of the mat, and requests that a negative inference charge be given to the jury.. Plaintiff also moves, pursuant to CPLR 3124, to compel Cafe Lafayette to produce discovery, and for an order of precl'l:lsion prohibiting Cafe Lafayette from introducing any evidence regarding actual and constructive notice regrading the mat, and seeks sanctions. Plaintiff alleges that on July 28, 2011, at approximately 9:00 a.m., she was walking in the entranceway of Cafe Lafayette, which is located at 80 Lafayette Street, Manhattan, New York~ when she slipped, tripped, and fell, due to a dirty and defective mat, platfonn, landing, and staircase. Plaintiff filed a summons and verified complaint on October 12, 2011, which states [* 2] that as a result of the "hazardous, dirty and unsafe conditions, and the improper and inadequate mat, lighting, steps, platform, landing, and handrails ... [p]Iaintiff was caused to ~lip/trip and fall and to sustain severe injuries to her body." (Kotlarewsld Affirm., ex A, ,f 50). Plaintiff also served a verified bill of particulars which states that "[p]laintiff slipped/tripped and fell on a curled, raised, worn, hazardous mat and staircase with inadequate handrails." (Kotlarewski Affirm., ex C, ~ 7). A preliminary conference was held on December 21, 2011, at which time both parties agreed to an inspection of the premises to take place on February ~4, 2012. Counsel for plaintiff maintains that she served Cafe Lafayette's counsel wit~1 a notice to preserve the mat on Febrnary 24, 201i, and mailed three good faith letters dated March 7, 2012, March 30, 2012, and ApriJ 4, 2012, which request that Cafe Lafayette produce all of the documents regarding the type and placement of the mats. Sun Cho Kim, president of Cafe Lafayette, who works at the premises, appeared for a deposition on b~half of Cafe.Lafayette .. Kim testified: Q. When did you remove the mat from the location? A. I replaced at the beginning of February of2012, this year. Q. Why did you replace the mat? A. It's oJd, torn, and there. has been the same mat for a long time, that's why. (Kim EBT, at 20). Cafe Lafayette argues that although the prelimin.ary conference order directed an inspection of the premises, the order does not request the preservation, production, or inspection of the subject mat. Cafe Lafayette maintains that plaintiff failed to timely request the preservation of the mat, and only did so on February 2~, 2012, after the mat was discarded. Defendants also contend that the mat was not disposed of intentionally or negligently with any 2 [* 3] knowledge of its evidentiary value, and that destruction of the mat in no way inhibits plaintiffs ~bility to prove her case. Pursuant to CPLR 3126, in order to st~ike an answer, the movant must make a clear · showing that its opponent failed to comply with discovery demands in a willful, contumacious manner or in bad faith. See Rodriguez v United States Bronx Parents, Inc., 70 AD3d 492, 492 (Isl Dept 2010). Spoliation is the loss, destruction, or alteration of key evidence to a lawsuit. See Squitieri v City ofNew York, 248 AD2d 201, 202 (1st Dept 1998)~ "[A]Ithough sanctions may be imposed for even negligent spoliation, striking a pleading is usually not warranted unless the evidence is crucial and the spoliator's conduct evinces some higher degree of culpability." Russo v BMW ofN Am., LLC, 82 AD3d 643, 644 (1st Dept 2011) (citations omitted). Here, p1aintiff fails to demonstrate that defendant acte~ in a willful, contumacious, or bad faith manner. Although defendant requested to inspect the premises, a demand was not made to preserve the subject mat until after the inspection fook place in_.February of2012, seven months after the accident. See American Intl. Ins. Co. v A. Steinman Plumbing & Heating Corp., 93 . AD3d 559, 560 (lst Dept 2012) (holding that plaintiffs request for sanctions for spoliation of evidence, regarding the disposal of the alarm system and water float was proper]y denied because plaintiff had made no request that they be retained). By the time of plaintiff's request for the mat, the mat had already been discarded. Furthermore, Keith M. Andresen, Esq., counsel for _Cafe Lafayette~ affirms that plaintiff had an opportunity to photograph the mat as well as the entrance of the premises, and attaches the photo as an exhibit to his affirmation in opposition. Kim testified that although he kept the subject mat for several months after the accident, he eventually had to replace it because it was old and torn and it was utilized at the front 3 [* 4] entrance. There is no evidence that Cafe Lafayette deliberately destroyed the mat and plaintiff does not demonstrate that the.loss of the mat wiJI fatally compromise the action. See Cameron v Nissan 112 Sales Corp., I 0 AD3d 591, 592 (2d Dept 2004). Both plaintiff and defendant were deposed about the· condition of the mat and they will have the oppo1tunity to testify at trial. Therefore, because plaintiff fails to meet her burden and does not demonstrate that Kim acted in willful, contumacious manner, or in bad faith, plaintiff's motion to strike the answer, must be denied. Plaintiff also requests that Cafe Lafayette be compelled to produce any records regarding the mat, or documents regarding the type and pfacement of the mat. To the extent that such documents exist and are in their possession, and because such documents may be relevant, defendant must provide such documents withiu 20 days .. Accordingly, it is ORDERED that the part of plaintiff Dorothy Albright's motion seeking to strike the answer of defendant Cafe Lafayette, Inc., or preclude or otherwise impose sanctions is denied; and it is further ORDERED that the part· of plaintiff~ motion seeking to compel records regarding the mat, or documents regarding the type and placement of the mat, is granted, and Cafe Lafayette must provide such documents within 20 days from serviCe of a copy of this order with notice of entry. Dated: I / ia..~ 1·L ED ENTER: JAN 25 2013 NEWVORf< COUNTY CLERK'S OFFICE . 4

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