STONEY v. ROGOSIN INSTITUTE (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Robin Garson, J.), dated March 13, 2023, and (2) a judgment of the same court dated April 17, 2023.  The order granted the defendant's motion for summary judgment dismissing the complaint, denied the plaintiff's motion for summary judgment on the issue of liability, and denied the plaintiff's separate cross-motion pursuant to CPLR 3126 to strike the defendant's answer or, in the alternative, for an adverse inference instruction against the defendant.  The judgment, upon the order, is in favor of the defendant and against the plaintiff dismissing the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

In December 2020, the plaintiff allegedly was injured when he tripped over a fabric caution cone located in the lobby of a dialysis clinic owned and operated by the defendant.  Thereafter, in May 2021, the plaintiff commenced this action against the defendant to recover damages for personal injuries.  Following the completion of discovery, the defendant moved for summary judgment dismissing the complaint.  The plaintiff moved for summary judgment on the issue of liability and separately cross-moved pursuant to CPLR 3126 to strike the defendant's answer or, in the alternative, for an adverse inference instruction against the defendant for spoliation of video surveillance evidence.  In an order dated March 13, 2023, the Supreme Court granted the defendant's motion and denied the plaintiff's separate motion and cross-motion.  The court issued a judgment dated April 17, 2023, upon the order, in favor of the defendant and against the plaintiff dismissing the complaint.  The plaintiff appeals.

“A landowner has a duty to maintain its premises in a reasonably safe condition” (Laruccia v. Lewis J. Newton & Sons, 242 A.D.3d 854, 854, 241 N.Y.S.3d 792;  see Sebagh v. Capital Fitness, Inc., 202 A.D.3d 853, 855, 162 N.Y.S.3d 440).  However, “[t]here is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” (Papetti v. City of Long Beach, 227 A.D.3d 919, 919, 211 N.Y.S.3d 506 [internal quotation marks omitted];  see Evans v. Fields, 217 A.D.3d 656, 656, 190 N.Y.S.3d 154).  “A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident” (Laruccia v. Lewis J. Newton & Sons, 242 A.D.3d at 855, 241 N.Y.S.3d 792 [internal quotation marks omitted];  see Martinez v. Fairfield Hills E., LLC, 213 A.D.3d 837, 837, 183 N.Y.S.3d 536).  “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” (Laruccia v. Lewis J. Newton & Sons, 242 A.D.3d at 855, 241 N.Y.S.3d 792 [internal quotation marks omitted];  see Martinez v. Fairfield Hills E., LLC, 213 A.D.3d at 837, 183 N.Y.S.3d 536).

Here, the defendant established its prima facie entitlement to judgment as a matter of law by showing that the fabric caution cone was open and obvious and not inherently dangerous (see Laruccia v. Lewis J. Newton & Sons, 242 A.D.3d at 855, 241 N.Y.S.3d 792;  Torres v. La Borinquena HDFC, Inc., 229 A.D.3d 830, 831, 216 N.Y.S.3d 230;  Weiss v. Half Hollow Hills Cent. School Dist., 70 A.D.3d 932, 933, 893 N.Y.S.2d 877).  The evidence the defendant submitted in support of its motion established, inter alia, that the lobby and vestibule areas were well-lit at the time of the accident and that the cone, which was bright yellow and approximately 30 inches tall, was readily observable by those employing the reasonable use of their senses.  The evidence further established that, just prior to the accident, the plaintiff traversed the area in which the cone was located without incident.  In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's motion for summary judgment on the issue of liability.

The Supreme Court providently exercised its discretion in denying the plaintiff's cross-motion pursuant to CPLR 3126 to strike the defendant's answer or, in the alternative, for an adverse inference instruction against the defendant for spoliation of video surveillance evidence.  “Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” (Van DeVeerdonk v. North Westchester Restorative Therapy & Nursing Ctr., 223 A.D.3d 702, 703, 204 N.Y.S.3d 132 [internal quotation marks omitted];  see N.H.R. v. Deer Park Union Free Sch. Dist., 180 A.D.3d 823, 824, 119 N.Y.S.3d 552).  “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (Rhoden v. 515 Rest., LLC, 237 A.D.3d 1233, 1235, 234 N.Y.S.3d 209 [internal quotation marks omitted];  see Van DeVeerdonk v. North Westchester Restorative Therapy & Nursing Ctr., 223 A.D.3d at 703–704, 204 N.Y.S.3d 132).

Here, the plaintiff did not establish, prima facie, that the defendant intentionally or negligently failed to preserve certain video surveillance footage after being placed on notice that the evidence might be needed for future litigation (see Van DeVeerdonk v. North Westchester Restorative Therapy & Nursing Ctr., 223 A.D.3d at 704, 204 N.Y.S.3d 132;  Tanner v. Bethpage Union Free Sch. Dist., 161 A.D.3d 1210, 1211, 78 N.Y.S.3d 433).  The plaintiff further failed to show that the absence of that video surveillance footage deprived him of his ability to prove his claim (see De Abreu v. Syed Rests. Enters., Inc., 231 A.D.3d 1116, 1118, 221 N.Y.S.3d 605;  Schaum v. Glass Gardens, Inc., 230 A.D.3d 711, 713, 217 N.Y.S.3d 620).

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.