| Erdely v Access Direct Sys., Inc. |
| 2007 NY Slip Op 09200 [45 AD3d 724] |
| November 20, 2007 |
| Appellate Division, Second Department |
| Robert Erdely et al., Appellants, v Access Direct Systems,Inc., Respondent. |
—[*1] Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Davis, J.), datedAugust 2, 2006, as granted that branch of the defendant's motion which was for summaryjudgment dismissing the common-law negligence cause of action and denied those branches oftheir cross motion which were for summary judgment on the issue of liability on thecommon-law negligence cause of action and to strike the defendant's answer pursuant to CPLR3126 as a sanction for its spoliation of evidence.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendant's motion which was for summary judgment dismissing the common-lawnegligence cause of action is denied, that branch of the plaintiffs' cross motion which was forsummary judgment on the issue of liability on the common-law negligence cause of action isgranted, and that branch of the plaintiffs' cross motion which was to strike the defendant's answerpursuant to CPLR 3126 as a sanction for its spoliation of evidence is granted to the extent ofprecluding the defendant from controverting the plaintiffs' prima facie showing that the subjectladder was defective and that the defendant had actual or constructive knowledge of such defect.
The injured plaintiff Robert Erdely allegedly was injured in February 2003 while performingmaintenance work at the defendant's premises. He claims that a "maintenance person" at thedefendant's premises had, on prior occasions, directed that, when seeking access to the roof [*2]of the building, he was to use a wooden ladder that was stored onsite. At his deposition, the plaintiff testified that after setting the ladder against the wall andchecking to make sure it was not "wobbly," he climbed it. Before he could reach the top,however, he heard a "crack," the ladder suddenly "kicked out" from under him, and he fell to theground.
A visual inspection of the ladder conducted by the plaintiff's employer shortly after theaccident apparently revealed no structural failure. However, it did reveal that the ladder looked"old," had no stickers approved by the Occupational Health and Safety Administration on it, andhad no rubber shoes at its base.
It is undisputed that the defendant had immediate notice of the accident. There was blood onthe floor in the area where the injured plaintiff fell, an ambulance had to be summoned, and thedefendant reported the occurrence to its insurance carrier. Less than three months after theaccident, the plaintiffs commenced this action, asserting causes of action based on common-lawnegligence and Labor Law § 240 (1) and § 241 (6), as well as a derivative claim. Bythen, however, the defendant had already disposed of the ladder.
Based on the above evidence, the defendant moved for summary judgment dismissing thecomplaint on the ground that the ladder suffered no structural failure and that, in any event, thedefendant had no actual or constructive notice of any defect in the ladder. The plaintiffscross-moved for summary judgment on the issue of liability and to strike the defendant's answerpursuant to CPLR 3126 as a sanction for its spoliation of evidence. The Supreme Court grantedthe motion and denied the cross motion. The appeal is limited to the plaintiffs' common-lawnegligence cause of action and the issue of imposing a sanction for the defendant's spoliation ofevidence.
Contrary to the defendant's contention, the Supreme Court erred in granting that branch of itsmotion which was for summary judgment dismissing the common-law negligence cause ofaction. The evidence tendered by the defendant established, inter alia, that the subject ladder hadno rubber shoes—a visible and apparent defect that would explain why the ladder suddenly"kicked out" from under the injured plaintiff as he attempted to climb it (cf. Orphanoudakis v Dormitory Auth. ofState of N.Y., 40 AD3d 502 [2007] [ladder with missing rubber shoes is defective]; Jicheng Liu v Sanford TowerCondominium, Inc., 35 AD3d 378 [2006] [absence of rubber shoes rendered ladderunsafe]). Thus, the defendant failed to establish its prima facie entitlement to judgment as amatter of law regarding the common-law negligence cause of action (see Ayotte v Gervasio,81 NY2d 1062, 1063 [1993]).
Moreover, the above evidence, coupled with the injured plaintiff's deposition testimony that,on previous occasions, he had been specifically instructed by one of the defendant's employees touse the subject ladder, was sufficient to establish, prima facie, the plaintiffs' entitlement tosummary judgment on the issue of liability with respect to the common-law negligence cause ofaction (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Lopez v WS Distrib., Inc., 34 AD3d759, 760 [2006]).
In opposition to the cross motion, the defendant claimed, inter alia, that any defect in theladder was not visible and apparent and that, in any event, it had no notice of any such defect.However, in light of the defendant's negligence in disposing of the ladder, a key piece ofevidence, at a time when it should have been obvious that the injured plaintiff would assert aclaim (see De Los Santos v Polanco,21 AD3d 397, 397-398 [2005]), it is appropriate, as a sanction, to preclude thedefendant from controverting the plaintiffs' prima facie showing regarding the existence of adefect and the [*3]defendant's notice of it (see CPLR3126). As the defendant otherwise failed to raise any triable issue of fact in opposition to theplaintiffs' prima facie showing, that branch of the cross motion which was for summary judgmenton the issue of liability on the common-law negligence cause of action should have been granted.Rivera, J.P., Skelos, Fisher and Angiolillo, JJ., concur.