| Koehler v Midtown Athletic Club, LLP |
| 2008 NY Slip Op 07734 [55 AD3d 1444] |
| October 10, 2008 |
| Appellate Division, Fourth Department |
| Wilfried Koehler, Respondent, v Midtown Athletic Club,LLP, et al., Appellants. |
—[*1] Woods Oviatt Gilman LLP, Rochester (James W. Kiley of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (William P. Polito, J.), enteredOctober 22, 2007 in a personal injury action. The order granted plaintiff's motion to strikedefendants' answer and for partial summary judgment on liability in favor of plaintiff as sanctionsfor spoliation of evidence.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the sanctions imposed, reinstating the answer, and granting plaintiff an adverseinference charge and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedlysustained when his foot became entangled in a net while playing tennis at a facility owned andoperated by defendants. Plaintiff's attorney notified defendants that the net was important to thelitigation and requested that it be preserved, and plaintiff, as well as defendants' insurer,photographed the net. Nevertheless, defendants failed to preserve the net, and plaintiff moved tostrike defendants' answer and for partial summary judgment on liability in favor of plaintiff assanctions for spoliation of evidence. On the record before us, we conclude that plaintiffestablished that spoliation had occurred and thus that some sanction was warranted, but we agreewith defendants that Supreme Court abused its discretion in granting plaintiff the relief sought(see Tomasello v 64 Franklin, Inc., 45 AD3d 1287, 1288 [2007]; Enstrom v GardenPlace Hotel, 27 AD3d 1084, 1085 [2006]). We therefore modify the order accordingly.
"A party seeking a sanction pursuant to CPLR 3126 such as preclusion or dismissal isrequired to demonstrate that 'a litigant, intentionally or negligently, dispose[d] of crucial items ofevidence . . . before the adversary ha[d] an opportunity to inspect them'. . . , thus depriving the party seeking a sanction of the means of proving his claimor defense. The gravamen of this burden is a showing of prejudice" (Kirschen v Marino,16 AD3d 555, 555-556 [2005]). Here, plaintiff is able to testify at trial that he fell when his footbecame entangled in the net and, indeed, he testified at his deposition with respect to the cause ofthe accident. Furthermore, both plaintiff and defendants photographed the holes in the net inquestion, and those photographs are available to plaintiff to support his contention thatdefendants had constructive notice of the [*2]alleged dangerouscondition, i.e., holes in the net in which a person playing tennis could become entangled (seegenerally Morgan v State of New York, 90 NY2d 471, 488 [1997]). Thus, we conclude that,"[u]nder all the relevant circumstances, neither striking the answer nor precluding defendant[s]from offering evidence at trial is warranted" (Quinn v City Univ. of N.Y., 43 AD3d 679,680 [2007]). Rather, we conclude that an adverse inference charge against defendants is a moreappropriate sanction. We therefore further modify the order accordingly.Present—Hurlbutt, J.P., Centra, Green and Pine, JJ.