| Seda v Epstein |
| 2010 NY Slip Op 02850 [72 AD3d 455] |
| April 6, 2010 |
| Appellate Division, First Department |
| Ramades Seda, Jr., Respondent-Appellant, v Nina Epsteinet al., Appellants-Respondents. |
—[*1] Harris/Law, New York (Matthew Gaisi of counsel), for respondent-appellant.
Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered on or about June 11, 2009,and amended order, same court and Justice, entered June 30, 2009, which, to the extent appealedfrom, respectively, denied plaintiff's motion to strike defendants' answer for spoliation ofevidence and denied so much of defendants' cross motion for summary judgment as sought todismiss plaintiff's Labor Law § 200 and common-law negligence claims, unanimouslyaffirmed, without costs.
Contrary to defendants' contention, whether they controlled or directed the manner ofplaintiff's work is irrelevant to the Labor Law § 200 and common-law negligence claims,since plaintiff alleges that his injury arose from a defective condition of the premises, where hewas washing windows (see e.g. Urban vNo. 5 Times Sq. Dev., LLC, 62 AD3d 553, 555 [2009]). The issue is whetherdefendants either created or had notice of the defective second-floor storm window frame, whichplaintiff alleges broke or became dislodged, causing him to fall to the concrete patio below (see Hernandez v Columbus Ctr., LLC,50 AD3d 597, 598 [2008]; Griffinv New York City Tr. Auth., 16 AD3d 202, 202-203 [2005]; Murphy v Columbia Univ., 4 AD3d200, 201-202 [2004]). Summary judgment in defendants' favor is precluded by issues of factraised by conflicting testimony as to whether defendants created the condition that causedplaintiff to step outside onto the ledge to clean the window, i.e., that the window had beenpainted shut, whether they had notice that the storm window frame needed repair, and whetherthe window frame had been properly repaired.
In view of plaintiff's testimony that he informed defendants a year before the accident thatthe window frame needed repair, that on the day of the accident defendant Nina Epstein told himit had been repaired, and that the frame did not seem loose when he touched the storm window,defendants failed to demonstrate conclusively that plaintiff was the sole proximate cause of hisinjuries.
The motion court properly declined to strike defendants' answer for spoliation of evidence(see Quinn v City Univ. of N.Y., 43AD3d 679 [2007]). There is no evidence that defendants' removal of the debris was willful;indeed, the preliminary conference order merely stated that defendants were to make thepremises available for inspection, and plaintiff did not [*2]schedule an inspection for more than two years (see e.g. Jimenez v Weiner, 8 AD3d133 [2004]). However, in view of defendants' failure to notify plaintiff's counsel of theintended removal, the court properly ordered the lesser sanction of an adverse inference charge(see e.g. Balaskonis v HRH Constr.Corp., 1 AD3d 120, 121 [2003]). Concur—Tom, J.P., Nardelli, Renwick andAcosta, JJ.