| Sloane v Costco Wholesale Corp. |
| 2008 NY Slip Op 01938 [49 AD3d 522] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Susan Sloane, Appellant, v Costco Wholesale Corporation,Respondent. |
—[*1] Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (Robert J. Walker, Ethan D. Irwin,and Dominic P. Bianco of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Kerins, J.), entered February 20, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint and denied her cross motionpursuant to CPLR 3126 to strike the defendant's answer based upon spoliation of evidence.
Ordered that the order is affirmed, with costs.
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burdenof making a prima facie showing that it neither created the hazardous condition nor had actual orconstructive notice of its existence for a sufficient length of time to discover and remedy it" (Frazier v City of New York, 47 AD3d757, 758 [2008]; see Prusak v NewYork City Hous. Auth., 43 AD3d 1022 [2007]; Scoppettone v ADJ Holding Corp., 41 AD3d 693 [2007]). Here,the defendant sustained this burden by submitting evidence that it did not create the conditionwhich caused the plaintiff's fall, and that no spills or other hazards were found when an employeeconducted a walk-through inspection of its store just minutes before the accident occurred. Inopposition, the plaintiff failed to raise a triable issue of fact (see Frazier v City of NewYork, 47AD3d 757 [2008]; Prusak v New York City Hous. Auth., 43 AD3d at 1023).Accordingly, the Supreme Court properly granted the defendant's motion for summary judgmentdismissing the complaint.[*2]
Furthermore, the court providently exercised itsdiscretion in denying the plaintiff's cross motion to strike the defendant's answer pursuant toCPLR 3126 based upon spoliation of evidence. The plaintiff failed to establish that the defendantintentionally or negligently failed to preserve crucial evidence after being placed on notice thatsuch evidence might be needed for future litigation (see Denoyelles v Gallagher, 40 AD3d 1027 [2007]; Lovell v United Skates of Am., Inc., 28AD3d 721 [2006]; Iannucci v Rose,8 AD3d 437, 438 [2004]; Andretta v Lenahan, 303 AD2d 527, 528 [2003]).Mastro, J.P., Covello, Eng and Belen, JJ., concur.