BACH v. CITY OF NEW YORK (2006)

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered January 5, 2006, which, inter alia, denied that branch of plaintiff's motion seeking renewal of her previously denied motion for summary judgment on the ground of spoliation, and that branch of her motion seeking the imposition of sanctions pursuant to CPLR 3126, unanimously affirmed, without costs.

Although plaintiff's motion was premised on new material and, accordingly, was one for renewal, and not reargument as the motion court thought, the substantive relief sought was nonetheless properly denied.   While the record indicates that records possibly bearing on whether defendant had notice of the alleged park path defect were lost, their loss was evidently inadvertent and occurred before the Parks Department, the custodian of the records, had notice of an impending action by plaintiff.   In view of the circumstances attending the loss and the additional circumstance that the lost records were not shown to be crucial to plaintiff's case, summary judgment upon the ground of spoliation would not have been appropriate (see Squitieri v. City of New York, 248 A.D.2d 201, 669 N.Y.S.2d 589 [2001];  DiDomenico v. C & S Aeromatik Supplies, Inc., 252 A.D.2d 41, 53, 682 N.Y.S.2d 452 [1998];   Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 666 N.Y.S.2d 609 [1997] ).   Nor did plaintiff demonstrate grounds for sanctions pursuant to CPLR 3126.   No willful and contumacious failure by defendant to comply with court-ordered discovery was shown (see Nussbaum v. D'Amico, 29 A.D.3d 449, 814 N.Y.S.2d 523 [2006] ).