| Quinn v City Univ. of N.Y. |
| 2007 NY Slip Op 06733 [43 AD3d 679] |
| September 13, 2007 |
| Appellate Division, First Department |
| Gerald Quinn, Appellant-Respondent, v City University ofNew York, Respondent-Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb of counsel), forrespondent-appellant.
Order, Court of Claims of the State of New York (Philip J. Patti, J.), entered April 5, 2006,which denied that aspect of claimant's motion seeking to strike defendant's answer pursuant toCPLR 3126 and granted that aspect of the motion seeking to preclude defendant from offeringcertain evidence at trial, unanimously modified, on the facts, that aspect of the motion seeking topreclude defendant from offering certain evidence at trial denied, and otherwise affirmed,without costs.
Court of Claims improvidently exercised its discretion in precluding defendant from offeringany evidence at trial on the condition of the chair, the collapse of which caused claimant'sinjuries. Defendant preserved the chair following claimant's accident in September 2000,permitting claimant to photograph the chair shortly after the accident and making the chairavailable to the parties in a related action in Supreme Court commenced by claimant against themanufacturer of the chair. Following the inspection of the chair by an expert for themanufacturer, an inspection attended by claimant's counsel, the manufacturer served on claimantapproximately 90 color photographs of the chair that were taken by the expert. Notwithstandingthat he had served on defendant in October 2002 a notice requesting that the chair be preserved,claimant did not seek to inspect the chair until July 2005, almost two years after the inspection bythe manufacturer's expert. By that time, however, the chair, which had been labeled as evidenceand put in a secure storage room, had been misplaced or destroyed by an outside contractor.Although defendant unquestionably was remiss, the failure to preserve the chair reflects nointentional misconduct. Under all the relevant circumstances, neither striking the answer norprecluding defendant from offering evidence at trial is warranted (see Kirschen v Marino, 16 AD3d555 [2005]; see also Hussain vNowak, 38 AD3d 1342 [2007]). Although some lesser sanction—be it a missingevidence charge (PJI3d 1:77 [2007]) or some other sanction—appears to be appropriate,that is a matter best left to the discretion of the trial court and should be made on the basis of therecord before it at the time. Concur—Andrias, J.P., Friedman, Sweeny, McGuire andKavanagh, JJ.