| Minaya v Duane Reade Intl., Inc. |
| 2009 NY Slip Op 06767 [66 AD3d 402] |
| October 1, 2009 |
| Appellate Division, First Department |
| Jose Minaya, Respondent, v Duane Reade International,Inc., Appellant. |
—[*1] Trolman, Glaser & Lichtman, P.C., New York (Michael T. Altman of counsel), forrespondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered January 22, 2009,which denied defendant's motion for summary judgment dismissing the complaint and grantedplaintiff's cross motion to strike defendant's answer on the ground of spoliation of evidence tothe extent of precluding defendant from presenting evidence at trial as to the issue of its notice ofthe condition of the stairs on which plaintiff was injured and directing that an adverse inferencebe charged, unanimously modified, on the law, to direct that the sanction be limited to directingthat an adverse inference be charged, and otherwise affirmed, without costs.
In sanctioning defendant for failing to preserve critical evidence, the motion courtappropriately exercised its "broad discretion to provide . . . relief to the partydeprived of the lost evidence" (Ortega vCity of New York, 9 NY3d 69, 76 [2007]). Defendant failed to preserve a videorecording that may have shown the stairway before and during plaintiff's accident. Theunavailability to plaintiff of the video recording may have impaired his ability to establish thatdefendant possessed the requisite notice of a defective condition on the stairs. Under thesecircumstances, however, the extreme sanction of preclusion is not warranted "to restore balanceto the matter" (Baldwin v Gerard Ave.,LLC, 58 AD3d 484, 485 [2009]). Rather, an adverse inference is sufficient to preventdefendant from using the absence of the videotape to its own advantage (Tomasello v 64 Franklin, Inc., 45AD3d 1287 [2007]). Concur—Mazzarelli, J.P., Saxe, Moskowitz, Renwick andRichter, JJ.