| Tomasello v 64 Franklin, Inc. |
| 2007 NY Slip Op 08506 [45 AD3d 1287] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Jason Tomasello, Respondent, v 64 Franklin, Inc., Doing Businessas Soho Bar, Appellant, et al., Defendant. |
—[*1] Law Offices of John J. Fromen, Buffalo, Magavern Magavern Grimm LLP (Edward J.Markarian of counsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), enteredApril 26, 2006 in a personal injury action. The order, among other things, imposed sanctionsagainst defendant 64 Franklin, Inc., doing business as Soho Bar, for negligent spoliation ofevidence.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by vacating the sanctions imposed, reinstating the first affirmative defenseof defendant 64 Franklin, Inc., doing business as Soho Bar, and granting plaintiff an adverseinference charge against that defendant and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen he slipped and fell on property leased by 64 Franklin, Inc., doing business as Soho Bar(defendant). Plaintiff moved for, inter alia, sanctions based on defendant's loss of a surveillancevideotape of defendant's premises taken at the time of the incident. We agree with SupremeCourt that a sanction was appropriate, but we conclude that the court abused its discretion indetermining the issues of notice and negligence in favor of plaintiff against defendant anddismissing defendant's affirmative defense alleging culpable conduct on the part of plaintiff, andwe therefore modify the order by vacating those sanctions. "Striking a pleading for negligentspoliation is a drastic sanction that is appropriate only where the missing evidence 'deprive[s] themoving party of the ability to establish his or her defense or case' " (Enstrom v Garden Place Hotel, 27AD3d 1084, 1086 [2006]; seeWetzler v Sisters of Charity Hosp., 17 AD3d 1088, 1089-1090 [2005], amended onother grounds 20 AD3d 944 [2005]). Here, plaintiff does not contend, nor does the recordreflect, that the loss of the surveillance videotape will prevent him from establishing a primafacie case of negligence. Further, plaintiff will have the opportunity, if so advised, to depose theindividuals who viewed the surveillance videotape in question. "Under the circumstances, thecourt should have considered a less severe sanction, which we now provide" (Molinari v Smith, 39 AD3d 607,608 [2007]; see Enstrom, 27 AD3d at 1087; see also Wetzler, [*2]17 AD3d at 1090; Metropolitan N.Y. Coordinating Council on Jewish Poverty v FGP BushTerm., 1 AD3d 168 [2003]). We conclude that an adverse inference charge againstdefendant is an appropriate sanction for the spoliation of evidence, and we therefore furthermodify the order accordingly. Present—Scudder, P.J., Hurlbutt, Gorski, Centra and Green,JJ.