| Gille v Long Beach City School Dist. |
| 2011 NY Slip Op 04202 [84 AD3d 1022] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Isabella Gille, Individually and as Mother and Natural Guardian ofMax Esformes, an Infant, et al., Appellants, v Long Beach City School District et al.,Respondents. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory A. Cascino of counsel), for respondents.
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from anorder of the Supreme Court, Nassau County (Mahon, J.), entered December 9, 2009, whichgranted the motion of the defendant Long Beach City School District for summary judgmentdismissing the complaint insofar as asserted against it and denied, as academic, their crossmotion to strike the answer of the defendant Long Beach City School District or to preclude itfrom asserting certain defenses based upon spoliation of evidence.
Ordered that the order is reversed, on the law, with costs, the motion of the defendant LongBeach City School District for summary judgment dismissing the complaint insofar as assertedagainst it is denied, and the matter is remitted to the Supreme Court, Nassau County, fordetermination of the cross motion on the merits.
While attending school in the Long Beach City School District (hereinafter the schooldistrict), the infant plaintiff allegedly was injured when a window shade fell and struck him in thehead and eye. The plaintiffs commenced the instant action to recover damages for personalinjuries based on the defendants' negligence asserting, inter alia, theories of liability based onpremises liability and negligent supervision.
After joinder of issue and discovery, the school district moved for summary judgmentdismissing the complaint insofar as asserted against it, and the plaintiffs cross-moved, pursuantto CPLR 3126, to strike the school district's answer or to preclude them from asserting certaindefenses based upon spoliation of evidence. The Supreme Court granted the school district'smotion and denied the plaintiffs' cross motion as academic. The plaintiffs appeal. We reverse.
Here, while the school district met its prima facie burden of proof of affirmativelydemonstrating its entitlement to judgment as a matter of law (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320[1986]), in opposition, the plaintiffs raised triable issues of fact with respect to, inter alia,whether the school district negligently supervised the infant plaintiff and his classmates andwhether the school district had actual or constructive notice of the defective condition (seeKandkhorov v Pinkhasov, 302 AD2d 432 [2003]; Perez v 655 Montauk, LLC, 81 AD3d 619 [2011]; [*2]Giuliniv Union Free School Dist. #1, 70 AD3d 632 [2010]). Resolving questions of credibility,determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trierof fact (see Republic Long Is., Inc. vAndrew J. Vanacore, Inc., 29 AD3d 665 [2006]; Harty v Kornish Distribs., 119AD2d 729 [1986]).
While it is unclear whether the school district negligently lost or intentionally destroyed keyevidence (see Denoyelles vGallagher, 40 AD3d 1027 [2007]; Baglio v St. John's Queens Hosp., 303 AD2d341, 342-343 [2003]), it is uncontested that the school district is unable to locate the windowshade, the very instrumentality giving rise to the infant plaintiff's injuries. However, because thedetermination of spoliation sanctions is within the broad discretion of the trial court (see Iamiceli v General Motors Corp.,51 AD3d 635 [2008]; Barnes vPaulin, 52 AD3d 754 [2008]; Dennis v City of New York, 18 AD3d 599 [2005]), the matter mustbe remitted to the Supreme Court, Nassau County, for its determination of the cross motion onthe merits (see American Fedn. of School Adm'rs, AFL-CIO v Council of Adm'rs &Supervisors, 266 AD2d 417, 418 [1999]; Polera Bldg. Corp. v New York School Constr.Auth., 262 AD2d 295 [1999]).
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court improperly granted the school district's motion for summaryjudgment and improperly denied the plaintiffs' cross motion as academic. Covello, J.P., Hall,Lott and Cohen, JJ., concur.