JACKSON v. DECK 86TH STREET 2630 LLC (2022)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion:

Papers NYSCEF Document No.

Motion Sequence No. 4

Notice of Motion, Affirmation in Supportm ECF 77 — ECF 83

Opposition ECF 90 — ECF 92

Reply ECF 93

Upon oral argument held and placed on the record on November 9, 2022 and review of the foregoing papers the plaintiff's cross-motion for summary judgment and/or for spoliation sanctions is hereby decided as follows:

The plaintiff's cross-motion for spoliation of evidence pursuant to CPLR 3126 is granted to the extent that the defendant is precluded at the time of trial from controverting plaintiff's prima facie showing that the subject chair was defective and that the defendant had constructive knowledge of such defect. See Erdely v. Access Direct Systems, Inc., 45 AD3d 724, 847 N.Y.S.2d 108 [2d Dept 2007].

The Defendant within three days of the incident, intentionally threw out the chair, a key piece of evidence, despite the fact defendant knew that the chair had allegedly collapsed when plaintiff sat on it, and that defendant deemed it necessary to call an ambulance to transport the plaintiff to the hospital for alleged injuries sustained as a result of the subject incident. In addition, defendant took a photograph of the chair following the incident but has not produced the photograph during the course of discovery claiming it is no longer available. Defendant's discarding of the subject chair and failure to retain the photograph taken of the chair, has caused substantial prejudice to the plaintiff. Whether or not defendant's discarding of the subject chair and failure to retain the photograph were not intentional where a key item of evidence is lost even negligently, the party responsible should be precluded from offering evidence as to its condition. Ren v. Professional Steam-Cleaning, Inc., 271 AD2d 602, 706 N.Y.S.2d 169 [2d Dept 2000].

This constitutes the Order of the Court.

Odessa Kennedy, J.