| Suazo v Linden Plaza Assoc., L.P. |
| 2013 NY Slip Op 00407 [102 AD3d 570] |
| January 29, 2013 |
| Appellate Division, First Department |
| Juana Suazo, Respondent, v Linden PlazaAssociates, L.P., et al., Appellants. |
—[*1] Susan R. Nudelman, Dix Hills, for respondent.
Order, Supreme Court, Bronx County (Lizbeth GonzÁlez, J.), entered March29, 2012, which denied defendants' motion for summary judgment dismissing thecomplaint, and granted plaintiff's cross motion seeking, as a spoliation sanction, to strikedefendants' answer and to grant her partial summary judgment on the issue of liability,unanimously modified, on the law and the facts, to grant the cross motion only to theextent of reducing the spoliation sanction to an adverse inference charge at trial, andotherwise affirmed, without costs.
Defendants failed to make a prima facie showing of entitlement to summaryjudgment inasmuch as plaintiff's daughter's deposition testimony, proffered bydefendants, does not clearly establish that the assailants were "allowed into the buildingby another tenant," thus failing to establish that defendants' alleged security breacheswere not a proximate cause of the assault on plaintiff (Burgos v Aqueduct RealtyCorp., 92 NY2d 544, 550-551 [1998]).
Since defendants were "on notice of a credible probability that [they would] becomeinvolved in litigation" (VOOMHD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 43 [1st Dept2012]), plaintiff demonstrated that defendants' failure to take active steps to halt theprocess of automatically recording over 30- to 45-day-old surveillance video and topreserve it for litigation constituted spoliation of evidence (id. at 41, 45).However, spoliation of the video did not "leave[ ] [plaintiff] prejudicially bereft ofappropriate means to confront a claim [or defense] with incisive evidence" (Kirklandv New York City Hous. Auth., 236 AD2d 170, 174 [1st Dept 1997] [internalquotation marks omitted]). At trial plaintiff may present testimony of the two deponentswho viewed the video to establish that the assailants were not allowed into the buildingby a tenant (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639,644-645 [1994]). Therefore, the motion court erred in striking defendants' answer.Accordingly, the [*2]appropriate sanction is an adverseinference charge (see Ahroner vIsrael Discount Bank of N.Y., 79 AD3d 481, 482-483 [1st Dept 2010];Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58, 60 [1st Dept2002]). Concur—Gonzalez, P.J., Mazzarelli, Acosta and Román, JJ.