| Palomo v 175th St. Realty Corp. |
| 2012 NY Slip Op 08811 [101 AD3d 579] |
| December 20, 2012 |
| Appellate Division, First Department |
| Sean Palomo, Respondent-Appellant, v 175th Street RealtyCorp. et al., Appellants-Respondents. |
—[*1] Barry E. Greenberg, P.C., Farmingdale (Barry E. Greenberg of counsel), forrespondent-appellant.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered March 9, 2012, whichdenied defendants' motion for summary judgment dismissing the complaint, and denied plaintiff'scross motion for, inter alia, an order striking defendants' answer for spoliation of key evidence,directing defendants and their insurance carriers to produce their files for in camera inspection,and granting him summary judgment as to liability, unanimously modified, on the law, to grantdefendants' motion to the extent it sought dismissal of the complaint as against defendants StevenPadernacht and Michael Padernacht, and otherwise affirmed, without costs.
Defendants satisfied their burden on summary judgment by presenting evidencedemonstrating that they did not create the defective condition of the marble staircase landing thatcollapsed under plaintiff, and lacked actual or constructive notice thereof. In opposition, plaintiffpresented evidence that the landing was visibly cracked for an extended period of time andwobbled when stepped on, thereby raising an issue of fact as to whether defendants hadconstructive notice of the defective condition for a sufficient period of time before the landingcollapsed to be able to make repairs. However, to the extent that the motion sought dismissal asagainst the Padernacht defendants individually, it should have been granted, inasmuch as thatportion of the motion was unopposed by plaintiff, and there is no evidence that the individualdefendants personally participated in any malfeasance or misfeasance constituting an affirmativetortious act (see Peguero v 601 RealtyCorp., 58 AD3d 556, 558-559 [1st Dept 2009]).
Defendants' claim that the affidavits of three notice witnesses should be disregarded becausethey were not timely disclosed is unpersuasive since one witness was a former employee ofdefendants, and the other two were identified by plaintiff or his mother in their depositiontestimony. Thus there can be no claim of prejudice or surprise. In any event, even withoutconsidering those affidavits, plaintiff raised an issue of fact as to notice. The alleged untimelydisclosure of plaintiff's expert did not render his expert's affidavit inadmissible, since any suchfailure was not intentional or willful, and there was no showing of prejudice to defendants (see Baulieu v Ardsley Assoc., L.P., 85AD3d 554 [1st Dept 2011]).
The merits of the untimely cross motion for summary judgment were properly reached to theextent that it is based on the same issues raised by the motion (CPLR 3212 [a]; see Filannino [*2]v Triborough Bridge & Tunnel Auth., 34 AD3d 280 [1stDept 2006], appeal dismissed 9 NY3d 862 [2007]). Plaintiff did not establish entitlementto summary judgment based on the doctrine of res ipsa loquitur, since, even assuming arguendothat exclusivity could be established, he has not shown that the inference of negligence isinescapable or that defendants failed to raise any material issue of fact in rebuttal (see Morejon v Rais Constr. Co., 7NY3d 203, 209 [2006]; EstrategiaCorp. v Lafayette Commercial Condo, 95 AD3d 732 [1st Dept 2012]).
Plaintiff's motion to have defendants' answer stricken as a sanction for spoliation, based onthe building superintendent's disposal of the broken marble pieces of the stair landing, wasproperly denied since plaintiff has not been deprived of his ability to prove his case (see Shapiro v Boulevard Hous. Corp.,70 AD3d 474, 476 [1st Dept 2010]), and plaintiff has not sought any lesser sanction (Rodriguez v 551 Realty LLC, 35 AD3d221, 221 [1st Dept 2006]). The court properly declined to grant plaintiff's request for incamera inspection, as plaintiff did not seek such relief until more than six months after he filedhis note of issue indicating that discovery was completed. Concur—Tom, J.P., Sweeny,DeGrasse, Manzanet-Daniels and Clark, JJ.