MOSCINSKI v. [And a Third-Party Action] (2024)

Order, Supreme Court, New York County (Sabrina Kraus, J.), entered October 7, 2022, which granted that portion of plaintiff's motion for summary judgment on his Labor Law § 200 claim, unanimously affirmed, without costs.

Plaintiff demonstrated his entitlement to summary judgment based on his expert's opinion that the stand holding the fire extinguisher which fell on his foot was not constructed in a manner consistent with applicable codes, standards, and accepted construction site practices.  In opposition, defendants could not raise an issue of fact as they were precluded from offering any evidence as to the condition of the fire extinguisher.  Defendants’ admitted failure to preserve the fire extinguisher constituted spoliation, and an adverse inference charge and preclusion against defendants was reasonable (see Gilchrist v. City of New York, 104 A.D.3d 425, 425–426, 961 N.Y.S.2d 70 [1st Dept. 2013];  Strong v. City of New York, 112 A.D.3d 15, 24, 973 N.Y.S.2d 152 [1st Dept. 2013]).

Plaintiff was also not required to establish that defendants were the sole proximate cause of the accident (see Rodriguez v. City of New York, 31 N.Y.3d 312, 320, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018];  Simmons v. Bergh, 192 A.D.3d 547, 548, 140 N.Y.S.3d 703 [1st Dept. 2021]).