DEVEAU v. CF GALLERIA AT WHITE PLAINS LP

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Supreme Court, Appellate Division, Second Department, New York.

Rose DEVEAU, appellant, v. CF GALLERIA AT WHITE PLAINS, LP, et al., respondents.

Decided: May 23, 2005

ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, FRED T. SANTUCCI, and ROBERT A. SPOLZINO, JJ. James J. Killerlane (David Samel, New York, N.Y. of counsel), for appellant. Sokol, Behot & Fiorenzo (David Arntsen, Garden City, N.Y. [Mitchell B. Levine] of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered April 1, 2004, which granted the defendants' motion for summary judgment dismissing the complaint and denied her cross motion for summary judgment due to spoliation of evidence.

ORDERED that the order is affirmed, with costs.

 The Supreme Court properly granted the defendants' motion for summary judgment.   The defendants sustained their burden of demonstrating, prima facie, that they neither created nor had notice of the alleged dangerous condition that caused the plaintiff to fall (see Stone v. Long Is. Jewish Med. Ctr., 302 A.D.2d 376, 377, 754 N.Y.S.2d 352;  Goldman v. Waldbaum, Inc., 297 A.D.2d 277, 746 N.Y.S.2d 44;  Brown-Phifer v. Cross County Mall Multiplex, 282 A.D.2d 564, 723 N.Y.S.2d 393;  Cuddy v. Waldbaum, Inc., 230 A.D.2d 703, 646 N.Y.S.2d 51).   In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   To constitute constructive notice, a condition must be visible and apparent, and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).   The plaintiff presented no proof with respect to how long the puddle in question was on the floor before she fell.   Accordingly, “there is no evidence to permit an inference that the defendants had constructive notice of the condition” (Stone v. Long Is. Jewish Med. Ctr., supra, citing McDuffie v. Fleet Fin. Group, 269 A.D.2d 575, 703 N.Y.S.2d 510).

 Moreover, under the circumstances of this case, the Supreme Court providently exercised its discretion in concluding that a sanction against the defendants was not warranted due to the alleged spoliation of a videotape depicting the accident.   When a party destroys essential physical evidence “such that its opponents are ‘prejudicially bereft of appropriate means to confront a claim with incisive evidence,’ the spoliator may be sanctioned by the striking of its pleadings” (New York Cent. Mut. Fire Ins. Co. v. Turnerson's Elec., 280 A.D.2d 652, 653, 721 N.Y.S.2d 92, quoting DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 53, 682 N.Y.S.2d 452;  see Klein v. Ford Motor Co., 303 A.D.2d 376, 377, 756 N.Y.S.2d 271;  Squitieri v. City of New York, 248 A.D.2d 201, 202, 669 N.Y.S.2d 589;  Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 173, 666 N.Y.S.2d 609).   However, where “the evidence lost is not central to the case or its destruction is not prejudicial, a lesser sanction, or no sanction, may be appropriate” (Klein v. Ford Motor Co., supra;  see Riley v. ISS Intl. Serv. Sys., 304 A.D.2d 637, 638, 757 N.Y.S.2d 593;  Chiu Ping Chung v. Caravan Coach Co., 285 A.D.2d 621, 728 N.Y.S.2d 767).   Contrary to the plaintiff's contention, she was not prejudiced by the loss of the videotape because, by her own admission, the tape did not show the puddle that caused her to fall, nor did the tape depict how long it was on the floor.   Accordingly, the loss of the tape did not prejudice the plaintiff in opposing the defendants' motion for summary judgment.

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