| Giuliano v 666 Old Country Rd., LLC |
| 2012 NY Slip Op 08095 [100 AD3d 960] |
| November 28, 2012 |
| Appellate Division, Second Department |
| Delia Giuliano, Respondent, v 666 Old Country Road,LLC, et al., Appellants. |
—[*1] Chesney & Murphy, LLP, Baldwin, N.Y. (Peter J. Verdirame of counsel), for appellantNouveau Elevator Industries, Inc. Sullivan & Sullivan, LLP, Garden City, N.Y. (Mitchell Dranow of counsel), forrespondent.
In an action to recover damages for personal injuries, (1) the defendants 666 Old CountryRoad, LLC, and Sutton & Edwards Management, LLC, appeal from so much of an order of theSupreme Court, Queens County (Brathwaite-Nelson, J.), dated May 10, 2011, as denied, asuntimely, that branch of their motion which was for summary judgment dismissing the complaintinsofar as asserted against them, and the defendant Nouveau Elevator Industries, Inc., separatelyappeals, as limited by its brief, from so much of the same order as denied, as untimely, thatbranch of its cross motion which was for summary judgment dismissing the complaint insofar asasserted against it, and denied its separate motion to extend its time to move for summaryjudgment nunc pro tunc, and (2) the defendant Sutton & Edwards Management, LLC, appealsfrom so much of an order of the same court dated July 1, 2011, as granted that branch of theplaintiff's motion which was to strike its answer based on spoliation of evidence.
Ordered that the order dated May 10, 2011, is affirmed insofar as appealed from; and it isfurther,
Ordered that the order dated July 1, 2011, is modified, on the law and in the exercise ofdiscretion, by deleting the provision thereof granting that branch of the plaintiff's motion whichwas to strike the answer of the defendant Sutton & Edwards Management, LLC, and substitutingtherefor a provision granting that branch of the motion only to the extent of directing that anadverse inference charge be given at trial against that defendant with respect to the videorecording of the underlying accident; as so modified, the order dated July 1, 2011, is affirmedinsofar as appealed from; and it is further,[*2]
Ordered that one bill of costs is awarded to the plaintiff,payable by the defendants appearing separately and filing separate briefs.
That branch of the motion of the defendants 666 Old Country Road, LLC (hereinafter OldCountry Road), and Sutton & Edwards Management, LLC (hereinafter Sutton & Edwards),which was for summary judgment dismissing the complaint insofar as asserted against them, andthat branch of the cross motion of the defendant Nouveau Elevator Industries, Inc. (hereinafterNouveau), which was for summary judgment dismissing the complaint insofar as asserted againstit, were untimely (see Buffolino v Cityof New York, 92 AD3d 633 [2012]; Hernandez v 35-55 73rd St., LLC, 90 AD3d 709, 709-710 [2011];Van Dyke v Skanska USA Civ.Northeast, Inc., 83 AD3d 1049 [2011]). Old Country Road and Sutton & Edwards, andNouveau, failed to demonstrate "good cause" for their respective delays in moving for summaryjudgment (CPLR 3212 [a]; see Miceli vState Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004]; Brill v City of New York, 2 NY3d648, 652 [2004]). Accordingly, the Supreme Court properly denied, as untimely, that branchof the motion of Old Country Road and Sutton & Edwards which was for summary judgmentdismissing the complaint insofar as asserted against them, and that branch of Nouveau's crossmotion which was for summary judgment dismissing the complaint insofar as asserted against it(see Buffolino v City of New York, 92 AD3d at 633; Hernandez v 35-55 73rd St.,LLC, 90 AD3d at 709-710).
The Supreme Court has broad discretion in determining sanctions for spoliation of evidence(see Mendez v La Guacatala, Inc.,95 AD3d 1084, 1085 [2012]). The party requesting sanctions for spoliation of evidence hasthe burden of demonstrating that a litigant intentionally or negligently disposed of criticalevidence, and fatally compromised the movant's ability to prove a claim or defense (seeid.). Here, although the plaintiff demonstrated that Sutton & Edwards intentionally ornegligently disposed of the video recording of the underlying accident, her ability to prove hercase without that recording was not fatally compromised (see id.). Accordingly, theSupreme Court improvidently exercised its discretion in striking Sutton & Edwards's answer onthat basis. Under the circumstances of this case, the appropriate sanction is to direct that anadverse inference charge be issued at trial against Sutton & Edwards with respect to theunavailable recording (id. at 1085-1086; see Barone v City of New York, 52 AD3d 630, 631 [2008]).
The defendants' remaining contentions are without merit. Mastro, A.P.J., Skelos, Florio andHall, JJ., concur.