| Burch v New York City Hous. Auth. |
| 2010 NY Slip Op 03237 [72 AD3d 551] |
| April 22, 2010 |
| Appellate Division, First Department |
| Winifred Burch, Appellant, v New York City HousingAuthority, Respondent. |
—[*1] Cullen and Dykman, LLP, Brooklyn (Andrew Giuseppe Vassalle of counsel), forrespondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered August 20,2009, which, in an action for personal injuries allegedly sustained in a slip and fall down astaircase in defendant's building, denied plaintiff's motion to strike defendant's answer,unanimously affirmed, without costs.
The motion court providently exercised its discretion in denying plaintiff's request forspoliation sanctions predicated on the loss of the personal handwritten notes of defendant'semployee. There is no evidence that defendant intentionally or negligently disposed of the noteswith knowledge of their evidentiary value to plaintiff or plaintiff's claimed need for them (see Diaz v Rose, 40 AD3d 429[2007]; Herbert v City of NewYork, 12 AD3d 209, 210 [2004]). The employee was under no duty to make the notes,which were not prepared in the regular course of defendant's business, and upon learning of theexistence of the notes, defendant undertook a search of the location they were last known to bekept, and could not find them (seeVoultepsis v Gumley-Haft-Klierer, Inc., 60 AD3d 524, 526 [2009]). Nor did defendantwillfully fail to comply with the discovery orders of the court (see Hernandez v Pace El. Inc., 69AD3d 493 [2010]). The record shows that defendant timely responded to plaintiff's notice ofdiscovery and inspection by providing all the documents that were in its possession responsive toplaintiff's requests. Concur—Gonzalez, P.J., Saxe, Nardelli, McGuire and Moskowitz, JJ.[Prior Case History: 2009 NY Slip Op 31812(U).]