| Shay v Mozer, Inc. |
| 2011 NY Slip Op 00371 [80 AD3d 687] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Stella Renee Shay, Respondent, v Mozer, Inc.,Appellant. |
—[*1] O'Neil & Burke, LLP, Poughkeepsie, N.Y. (Richard J. Burke, Jr., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Dutchess County (Dolan, J.), dated July 13, 2009, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff, a bartender at the Club House Bar, alleges that she was injured as sheattempted to exit the premises through a side door. The plaintiff alleges that the door at issuedeveloped a "sticking" condition as a result of a replacement door lock installed nine days earlierby the vice president of the defendant, owner of the building, and that such condition was aproximate cause of injuries sustained by her when the door stuck as she tried to push it open. Herhand went through a pane of glass on the door. Approximately one day after the plaintiff'saccident, journeyman carpenter Robert Morris, whom the plaintiff would later name as her expertwitness, repaired the door at the request of the plaintiff's employer, a nonparty to this action. Inhis deposition testimony, Morris stated that the door lock had been improperly installed, causingit to stick when opening or closing. Morris replaced the lock and striking mechanism. The partsMorris removed from the door were ultimately disposed of before the plaintiff commenced thisaction, and thus, the defendant did not have an opportunity to inspect them in relation to thislitigation.
In moving for summary judgment, the defendant contended, inter alia, that it was entitled tosummary judgment dismissing the complaint because it did not create the allegedly dangerouscondition in the door and because of spoliation of evidence by the plaintiff's expert. The SupremeCourt denied the defendant's motion. We affirm.
The defendant failed to make a prima facie showing of its entitlement to judgment as amatter of law dismissing the complaint. It failed to show that it did not affirmatively create adangerous condition. Contrary to the defendant's contention, while the plaintiff's employertestified at a deposition that she altered the locks on the premises at some point in time, there isno evidence in the record that she altered the lock on the side door in question in the nine daysbetween the time the replacement lock was installed by the defendant's vice president and theplaintiff's accident. Moreover, while the plaintiff's employer testified that she was never providedwith a key to the side door after the defendant's vice president replaced the lock, she alsoexplained that she was able to open it "[f]rom the inside, it had a [*2]deadbolt. Just to turn. It couldn't be opened from the outside with akey." Notably, the defendant did not provide any evidence to support its theory that the lock itinstalled would have rendered it impossible to open the door from the inside. Since the defendantfailed to meet its prima facie burden that it did not affirmatively create a dangerous condition, weneed not consider whether the plaintiff's papers submitted in opposition to the defendant's motionraised a triable issue of fact with respect to this theory of liability (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]; Coscia v 938 Trading Corp., 283 AD2d538 [2001]).
The defendant also failed to make a prima facie showing that it was entitled to summaryjudgment based on spoliation of evidence. "Under the common-law doctrine of spoliation, whena party negligently loses or intentionally destroys key evidence, thereby depriving thenonresponsible party of the ability to prove its claim, the responsible party may be sanctioned bythe striking of its pleading" (Gotto vEusebe-Carter, 69 AD3d 566, 567 [2010]). However, "[w]here a party did not discardcrucial evidence in an effort to frustrate discovery, and cannot be presumed to be responsible forthe disappearance of such evidence, spoliation sanctions are inappropriate" (Cordero v Mirecle Cab Corp., 51AD3d 707, 709 [2008]; see O'Reilly v Yavorskiy, 300 AD2d 456, 457 [2002]). Here,it is undisputed that the plaintiff was not responsible for the loss of evidence, which occurredbefore the litigation was commenced and well before she named Morris as an expert witness.
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint on the ground that it did not affirmatively create the allegedlydangerous condition and based on the plaintiff's spoliation of evidence.
The defendant's remaining contentions are without merit. Dillon, J.P., Angiolillo, Belen andRoman, JJ., concur.