SKLAR v. 650 PARK AVENUE CORPORATION (2023)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered March 24, 2022, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing plaintiffs’ claims for negligent trespass and negligent hiring and supervision, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered March 21, 2022, which denied plaintiffs’ motion for summary judgment and for spoliation sanctions, unanimously dismissed, without costs.

The court correctly granted defendants summary judgment dismissing the cause of action for negligent trespass because plaintiffs’ theory of liability is that defendants deprived them of, rather than interfered with, their possession of the storage locker's contents (see Sporn v. MCA Records, 58 N.Y.2d 482, 487, 462 N.Y.S.2d 413, 448 N.E.2d 1324 [1983]).  The negligent hiring and supervision causes of action were also properly dismissed because plaintiffs submitted no evidence showing that defendant co-op's superintendent had a propensity to dispose of tenants’ property without informing them (see Norris v. Innovative Health Sys., Inc., 184 A.D.3d 471, 472, 126 N.Y.S.3d 122 [1st Dept. 2020]).  We decline defendants’ invitation to search the record and grant them summary judgment on plaintiffs’ remaining claims.

Plaintiffs’ appeal from the order entered March 21, 2022, which denied their motion for summary judgment and for spoliation sanctions on procedural grounds, is dismissed, in light of Supreme Court's subsequent order granting plaintiffs leave to reargue that motion, and, upon reargument, denying the motion on the merits.  Ordinarily, plaintiffs would be permitted to maintain their appeal and challenge the subsequent order (see CPLR 5517[a][1], [b];  5701[a][2][viii]).  However, here, the record on appeal, which was plaintiffs’ obligation to compile, does not permit meaningful review of that order because it does not include the order or the corresponding motion papers (see CPLR 5526;  Matter of Anthony S. v. Monique T.B., 148 A.D.3d 596, 597–598, 50 N.Y.S.3d 342 [1st Dept. 2017];  UBS Sec. LLC v. Red Zone LLC, 77 A.D.3d 575, 579, 910 N.Y.S.2d 55 [1st Dept. 2010], lv denied 17 N.Y.3d 706, 2011 WL 2568003 [2011]).

Further, we note that plaintiffs failed to demonstrate that the video footage at issue is relevant because defendants admitted that they caused the removal and disposal of plaintiffs’ possessions.  Thus, defendants’ spoliation of the footage did not warrant sanctions (see CPLR 3126 [authorizing discovery sanctions];  VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 45, 939 N.Y.S.2d 321 [1st Dept. 2012]).