| Aguirre v Paul |
| 2008 NY Slip Op 06541 [54 AD3d 302] |
| August 5, 2008 |
| Appellate Division, Second Department |
| Maria Elena Aguirre et al.,Respondents-Appellants, v Lawrence Paul et al.,Appellants-Respondents. |
—[*1] Sobel, Ross, Fliegel & Suss, LLP, New York, N.Y. (Slavko Ristich of counsel), forrespondents-appellants.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Saitta, J.), datedMay 31, 2007, as denied those branches of their renewed motion which were for summaryjudgment dismissing the complaint or, in the alternative, for summary judgment dismissing thecomplaint insofar as asserted against the defendant Lawrence Paul in his individual capacity, anddenied in part that branch of their renewed motion which was to dismiss the complaint based onspoliation of evidence, and the plaintiffs cross-appeal, as limited by their brief, from so much ofthe same order as granted that branch of the defendants' renewed motion which was to dismissthe complaint based on spoliation of evidence to the extent of directing that an adverse inferencecharge be given at trial.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, and that branchof the defendants' renewed motion which was to dismiss the complaint based on spoliation ofevidence is denied in its entirety; and it is further,
Ordered that one bill of costs is awarded to the respondents-appellants.
In this personal injury action, the plaintiff Maria Elena Aguirre (hereinafter the plaintiff)allegedly fell after tripping on a torn rubber mat in a pet store operated by Coral Aquariums, Inc.(hereinafter Coral). She and her husband commenced the instant action against Coral and itspresident and sole shareholder, Lawrence Paul. More than one year after the incident, Aguirrediscarded the shoes she had been wearing when she fell. The Supreme Court denied thosebranches of the defendants' renewed motion which were for summary judgment dismissing thecomplaint or, [*2]in the alternative, for summary judgmentdismissing the complaint insofar as asserted against Paul in his individual capacity. The courtgranted that branch of the defendants' renewed motion which was to dismiss the complaint basedon spoliation of evidence (Aguirre's shoes) to the extent of directing that an adverse inferencecharge be given at trial.
"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" (Prusak v New York City Hous. Auth.,43 AD3d 1022, 1022 [2007]; see Lewis v Metropolitan Transp. Auth., 64 NY2d 670,671 [1984]; Birthwright v Mid-City Sec., 268 AD2d 401 [2000]). In opposition to thedefendants' prima facie showing of their entitlement to summary judgment dismissing thecomplaint, the plaintiffs raised triable issues of fact as to whether the premises were negligentlymaintained, whether there was a dangerous condition which caused the plaintiff to fall, andwhether the defendants had notice of that dangerous condition. Accordingly, the Supreme Courtproperly denied that branch of the defendants' renewed motion which was for summary judgmentdismissing the complaint.
The Supreme Court also properly denied that branch of the defendants' renewed motionwhich was for summary judgment dismissing the complaint insofar as asserted against thedefendant Paul in his individual capacity. "A corporate officer is not held liable for thenegligence of the corporation merely because of his official relationship to it. It must be shownthat the officer was a participant in the wrongful conduct" (Clark v Pine Hill Homes, 112AD2d 755 [1985]; see Bellinzoni v Seland, 128 AD2d 580 [1987]). " '[I]f a director orofficer commits, or participates in the commission of, a tort, whether or not it is also by or for thecorporation, he is liable to third persons injured thereby' " (Greenway Plaza Off. Park-1 v Metro Constr. Servs., 4 AD3d 328,329-330 [2004], quoting 14A NY Jur 2d, Business Relationships § 763 at 434; see VanWormer v McCasland Truck Ctr., 163 AD2d 632 [1990]). The defendants failed to make aprima facie showing that the defendant Paul did not participate in the alleged negligentmaintenance which led to the plaintiff's injuries.
However, the Supreme Court improperly granted that branch of the defendants' renewedmotion which was to dismiss the complaint based on spoilation of evidence to the extent ofdirecting that an adverse inference charge be given at trial. Under the circumstances of this case itwas improper to impose any sanctions against the plaintiffs for spoliation of evidence.
In light of the foregoing, we need not reach the plaintiffs' remaining contention. Skelos, J.P.,Dillon, Leventhal and Chambers, JJ., concur.