SLOANE v. COSTCO WHOLESALE CORPORATION (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kerins, J.), entered February 20, 2007, which granted the defendant's motion for summary judgment dismissing the complaint and denied her cross motion pursuant to CPLR 3126 to strike the defendant's answer based upon spoliation of evidence.

ORDERED that the order is affirmed, with costs.

 “A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Frazier v. City of New York, 47 A.D.3d 757, 758, 850 N.Y.S.2d 552;  see Prusak v. New York City Hous. Auth., 43 A.D.3d 1022, 841 N.Y.S.2d 455;  Scoppettone v. ADJ Holding Corp., 41 A.D.3d 693, 839 N.Y.S.2d 116).   Here, the defendant sustained this burden by submitting evidence that it did not create the condition which caused the plaintiff's fall, and that no spills or other hazards were found when an employee conducted a walk-through inspection of its store just minutes before the accident occurred.   In opposition, the plaintiff failed to raise a triable issue of fact (see Frazier v. City of New York, 47 A.D.3d 757, 850 N.Y.S.2d 552;  Prusak v. New York City Hous. Auth., 43 A.D.3d at 1023, 841 N.Y.S.2d 455).   Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

 Furthermore, the court providently exercised its discretion in denying the plaintiff's cross motion to strike the defendant's answer pursuant to CPLR 3126 based upon spoliation of evidence.   The plaintiff failed to establish that the defendant intentionally or negligently failed to preserve crucial evidence after being placed on notice that such evidence might be needed for future litigation (see Denoyelles v. Gallagher, 40 A.D.3d 1027, 834 N.Y.S.2d 868;  Lovell v. United Skates of Am., Inc., 28 A.D.3d 721, 812 N.Y.S.2d 881;  Iannucci v. Rose, 8 A.D.3d 437, 438, 778 N.Y.S.2d 525;  Andretta v. Lenahan, 303 A.D.2d 527, 528, 756 N.Y.S.2d 454).