Osorio v Louis Richardt Holdings LLC
Annotate this CaseDecided on March 23, 2017
Supreme Court, Bronx County
Starling Osorio, Plaintiff,
against
Louis Richardt Holdings LLC, LEVITES REALTY MGT CORP., LEVITES REALTY MANAGEMENT, LLC and LEVITES REALTY CO., LLC, Defendants.
21487/12E
Plaintiff's Attorney:Paris & Chaiken, PLLC by Ian M. Chaiken, Esq.
Defendants' Attorney: Mintzer Sarowitz Zeris Levda & Meyers, LLP by Richard M. Gash, Esq.
Lizbeth Gonz¡lez, J.
Plaintiff alleges that due to the defendants' negligence, he sustained serious injuries on 7/8/12 when a defective step collapsed as he ascended the basement stairs of 513 East 138th Street in Bronx County, causing him to fall to the ground. Approximately one year later in June 2013, defendants replaced and destroyed the basement staircase without prior notice. Plaintiff moves to strike defendants' answers and alternatively seeks an adverse inference based on defendants' spoliation of material evidence. Defendants oppose the motion.
In support of his motion, plaintiff proffers the 1/20/15 deposition transcript of Alexis Tejada, defendants' property manager from approximately 2003-2013, who testified that the subject premises is a six-story mixed-use building. Mr. Tejada stated that a McDonald's restaurant " a commercial property - had access to the residential basement for storage of its garbage and cooking oil. He testified that the basement staircase was never repaired during the ten-year course of his employment.
Plaintiff proffers his own deposition transcript wherein he testified that on 7/8/12, he was employed as a maintenance worker at the McDonald's restaurant. To effectuate garbage removal, plaintiff exited McDonald's, entered the subject premises through the adjoining front door used by residents and carried large garbage bags to a dumpster in the basement. When the dumpster was full, plaintiff carried the garbage bags upstairs for sanitation pick-up. On 7/8/12 at approximately 5:30 PM as plaintiff ascended the stairs with two bags in each hand, the third step from the bottom collapsed, causing his left foot to go through the stairs and his body to fall backwards.
Plaintiff proffers the deposition transcript of building superintendent Jose Campos, who testified that the front door of 513 East 138th Street was unlocked and the basement door was locked. Plaintiff gained access with a key provided by his manager.
By way of opposition, defendants proffer the deposition transcripts of plaintiff; building superintendent Jose Campos; building porter Dario Radanes Rodriguez; property manager Alexis Tejada; the affirmation of Kathleen Hannan, Esq.; and several staircase photographs.
At deposition, building superintendent Campos testified that only he and McDonald's employees had basement keys. The staircase had a metal frame with steps of poured concrete. Mr. Campos noticed no missing steps or defects with the basement staircase in 2012. In May [*2]2013, after observing that the metal was corroded and concrete was missing from the sides of approximately five steps, he notified property manager Alex Tejada.[FN1] Mr. Campos testified that no work was done to repair the stairs beforehand.
Defendants submit a $4300 estimate dated 6/17/13 from E & R Gates and Iron Works to defendant Levite Realty [FN2] for a new staircase and "demolition of previous stairway" marked "OK to go." Defendants attach a check from Levites Realty Management LLC to E & R in the amount of $2300 dated 7/1/13 to establish that the staircase was destroyed in June 2013.
The following correspondence is submitted by the parties in support of their respective positions:
¢ By letter dated 1/22/15, plaintiff's counsel, Ian M. Chaiken, Esq., asked defendants' counsel to provide available dates for a site inspection pursuant to his demand at deposition.¢ By letter dated 1/29/15, defendants' counsel, Richard M. Gash, Esq., stated that he had communicated plaintiff's demand to his client and was awaiting to be notified of available dates. ¢ By letter dated 2/27/15, plaintiff's counsel renewed his demand since no inspection dates were provided.¢ By letter dated 8/4/15, plaintiff's counsel asked that he be contacted since no opportunity to conduct a site inspection had been provided.¢ By email dated 11/20/15, Mr. Chaiken informed Mr. Gash that he had filed a motion since no follow-up had resulted after a conversation regarding the site inspection. Plaintiff's counsel noted inter alia: "As you had advised previously, the condition of the stairs following the accident have not been altered and I anticipate same to be true."¢ By letter faxed and mailed 1/27/16, defendants' counsel Kathleen Hannan, Esq. (from the same law firm as Mr. Gash) confirmed that the inspection scheduled for 1/28/16 was cancelled by mutual agreement.¢ By letter emailed and mailed 1/27/16, plaintiff's counsel clarified that the inspection was canceled because the staircase had been removed and destroyed without notice.DISCUSSION
Spoliation sanctions "are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them (Kirkland v NYC Hous. Auth., 236 AD2d 170 [1st Dept 1997]). The parties reference Dulac v AC & L Food Corp., 119 AD3d 450 (1st Dept 2014), lv denied 24 NY3d 908 (2014), for the three-fold standard that a moving party must establish in seeking sanctions based on spoliation: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a "culpable [*3]state of mind," which may include ordinary negligence; and (3) that the destroyed evidence was relevant to the moving party's claim or defense.
Obligation to Preserve
Plaintiff's complaint and the bill of particulars identify the staircase as the location where he was allegedly injured. The parties agree that the basement of the subject premises was locked. Given these circumstances, defendants were obliged to provide plaintiff with prior notice of their intention to remove and destroy the staircase (Malouf v Equinox, 113 AD3d 422 [1st Dept 2014]).
Culpable State of Mind
The procedural history and submitted correspondence between the parties conclusively establish that defendants acted with a culpable state of mind. This action was commenced on 11/5/12, approximately four months after plaintiff's accident. A Request for Judicial Intervention seeking a preliminary conference was filed on 2/25/13. A Preliminary Conference Order was subsequently issued on 5/30/13. Notwithstanding the active posture of this litigation, defendants retained E & R Gates and Iron Works to remove and destroy the staircase.
The defendants provide no affidavits and thus no explanation for their actions. They proffer the affirmation of Kathleen Hannan, Esq., to refute plaintiff's allegation that defendants willfully destroyed material evidence but counsel's assertions lack probative value since the proffered transcripts do not reference the destruction of the staircase (see Lewis v Safety Disposal System of Pennsylvania, Inc., 12 AD3d 324 [1st Dept 2004]; Ramnarine v Memorial Center for Cancer and Allied Diseases, 281 AD2d 218 [1st Dept 2001]; Zuckerman v City of NY, 49 NY2d 557 [1980]; see also Jeffcoat v Andrade, 205 AD2d 374 [1st Dept 1994]).
Like the co-defendant in Standard Fire Ins. Co. v Federal Pacific Elec. Co., 14 AD3d 213 (1st Dept 2004), plaintiff wrote to defendants' counsel "to no avail" to schedule an inspection date.
Relevance of the Destroyed Evidence to the Plaintiff's Claim
Defendants' counsel argues lack of prejudice because "it appears plaintiff's delay in requesting an inspection was based upon the fact that plaintiff had already inspected the staircase following his accident and thus had photographs [FN3] of the staircase which depict the alleged defective condition."
Contrary to Ms. Hannon's assertion that plaintiff had access to the staircase prior to its replacement, building superintendent Campos testified that he denied plaintiff post-accident access to the basement three times on two unspecified dates. Plaintiff's blurry photographs of the staircase " which appear to depict a missing tread - are no substitute for the site inspection requested by plaintiff.
CONCLUSION
To the extent that a court finds that a party has engaged in the destruction of evidence and failed to disclose information that "ought to have" been disclosed, CPLR 3126 vests the court with discretion to make such orders as are just (Ortega v City of New York, 9 NY3d 69 [*4][2007]).
After careful consideration and review, the court finds that as a matter of law, defendants willfully and deceptively destroyed material evidence " the basement staircase " with notice that the evidence would be needed for litigation. The court notes that defendants moreover failed to correct their attorney's representation that the staircase remained unchanged post-accident as referenced in Mr. Chaiken's 11/20/15 email to Mr. Gash.
Plaintiff's motion is granted to the extent that the sanction of an adverse inference in plaintiff's favor is hereby ordered; this sanction shall be communicated to the jury in the event of trial. Striking the answers herein, however, is not warranted since the Preliminary Conference Order does not reference any inspections and plaintiff waited more than two years before attempting to schedule an inspection date (compare Rookwood v Busy B's Child Care Daycare Inc. 2017 NY Slip Op 01281 [1st Dept 2017] with Seda v Epstein, 72 AD3d 455 [1st Dept 2010] and Jimenez v Weiner, 8 AD3d 133 {1st Dept 2004]).
A copy of this Decision and Order with Notice of Entry shall be served within 15 days.
Dated: March 23, 2017
So Ordered,
________________________________
Hon. Lizbeth Gonz¡lez, SCJ Footnotes
Footnote 1:Mr. Tejada testified that he stopped working for defendants in January 2013.
Footnote 2: The court has not been apprised of the distinction between defendants Levites Realty Mgt Corp., Levites Realty Management, LLC and Levites Realty Co., LLC other than to be informed that Levites Realty managed the property.
Footnote 3:Defendants' counsel posits in her affirmation that the photographs were taken either by plaintiff or his co-worker. Plaintiff's counsel states that the photographs were taken by a co-worker.
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