| Hoffman v United Methodist Church |
| 2010 NY Slip Op 06360 [76 AD3d 541] |
| August 10, 2010 |
| Appellate Division, Second Department |
| Kristen Hoffman et al., Appellants, v United MethodistChurch, Respondent. |
—[*1] Simon Lesser P.C., New York, N.Y. (Renee Simon Lesser, Leonard F. Lesser, andEleftherios Kravaris of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Rebolini, J.), dated July 9, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint and denied their crossmotion to strike the answer pursuant to CPLR 3126 based on spoliation of evidence.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thedefendant's motion for summary judgment dismissing the complaint and substituting therefor aprovision denying the motion; as so modified, the order is affirmed, with costs.
The plaintiff Kristen Hoffman (hereinafter the plaintiff) allegedly fell on a stairway leadingfrom the ground to a landing outside the back door of a church owned by the defendant.According to the plaintiff's deposition testimony, the fall occurred when a wooden tread that waspart of the stairway detached from the adjoining stringers and collapsed.
The plaintiff and her husband, suing derivatively, commenced this action against thedefendant to recover damages for personal injuries. The defendant moved for summary judgmentdismissing the complaint on the ground that it neither created nor had actual or constructivenotice of the alleged defective condition of the stairs. The plaintiffs opposed the motion andcross-moved to strike the defendant's answer pursuant to CPLR 3126 based on spoliation ofevidence, as the collapsed tread was discarded by the defendant. The plaintiffs alleged that thedefendant had constructive notice of the alleged defect and was otherwise negligent in failing toconduct a reasonable inspection of the stairs. In addition, the plaintiffs invoked the doctrine ofres ipsa loquitur, contending that this type of accident would not normally occur absentnegligence.
A property owner is subject to liability for a defective condition on its premises if a plaintiffdemonstrates that the owner either created the alleged defect or had actual or constructive noticeof it (see Betz v Daniel Conti, Inc.,69 AD3d 545 [2010]; Roy v City ofNew York, 65 AD3d 1030 [2009]). However, where, as here, "an object capable ofdeteriorating is concealed from view, a property owner's duty of reasonable care entails periodicinspection of the area of potential defect" (Hayes [*2]v Riverbend Hous. Co., Inc.,40 AD3d 500, 501 [2007]; seeMirkinson v Stonehill Realty Corp., 53 AD3d 534 [2008]; Personius v Mann, 20 AD3d 616,619 [2005], mod 5 NY3d 857 [2005]).
Here, examination of the postaccident condition of the stairway, as reflected in certainphotographs in the record, would permit a finder of fact to infer that the wooden step in questionhad detached due, in whole or in part, to screws or nails that had become rusty over time anddiscolored the wood, and which could no longer adequately support the weight to which the stepwas periodically subjected. At the plaintiff's deposition, she testified that she observed a nail thathad apparently been part of the step's supporting structure "disintegrate" or "pretty muchcrumble[ ]" in the hand of a police officer who arrived after the accident. This evidencepermitted an inference that even a nonprofessional inspection ought to have revealed to areasonable landowner either the existence of a dangerous condition or, at the very least, the needto conduct a professional inspection. Therefore, there is a question of fact as to whether thedefendant failed in its obligation to make a reasonable inspection (see Colon v Bet Torah, Inc., 66 AD3d731 [2009]; Seivert v KingpinEnters., Inc., 55 AD3d 1406 [2008]).
Contrary to the determination of the Supreme Court, there is also a triable issue of fact as tothe liability of the defendant under the doctrine of res ipsa loquitur (see Gaspard v Barkly Coverage Corp.,65 AD3d 1188, 1189 [2009]; Champagne v Peck, 59 AD3d 1130 [2009]; Finocchio v CrestHollow Club at Woodbury, 184 AD2d 491 [1992]; Duncan v Corbetta, 178 AD2d459 [1991]; Parsons v State of New York, 31 AD2d 596 [1968]). The record indicatesthat the staircase in question led to a back entrance of the church to which the public did nothave unfettered access (see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 228[1986]; Torres v Cordice, 11 Misc3d 23, 24-25 [2006]).
Under these circumstances, the defendant's motion should have been denied based on thedefendant's failure to make a prima facie showing of entitlement to judgment as a matter of law(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
However, the Supreme Court properly denied the plaintiffs' cross motion to strike the answerbased upon the fact that the defendant discarded the actual tread which collapsed, since thephotographic and expert evidence, in addition to the plaintiff's own deposition testimony as tothe dynamics of the accident, indicate that the absence of the missing evidence would notdeprive the plaintiff of the ability to establish her case (see Gotto v Eusebe-Carter, 69 AD3d 566 [2010]; Denoyelles v Gallagher, 40 AD3d1027 [2007]). We therefore reject the plaintiffs' argument that the defendant's spoliation ofthis evidence warrants striking of the answer.
The defendant's remaining contention is without merit. Skelos, J.P., Hall, Roman and Sgroi,JJ., concur.