| Jackson v Whitson's Food Corp. |
| 2015 NY Slip Op 05889 [130 AD3d 461] |
| July 7, 2015 |
| Appellate Division, First Department |
[*1]
| Dana Jackson, Appellant, v Whitson's FoodCorp. et al., Respondents. |
Isaacson, Schiowitz & Korson, LLP, Rockville Centre (Jeremy Schiowitz ofcounsel), for appellant.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), forWhitson's Food Corp. and Whitson's Food Service Corp., respondents.
Kaufman Dolowich & Voluck, LLP, New York (Rohit K. Mallick of counsel),for Camba, Inc., respondent.
Orders, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered May 16, 2014,which, to the extent appealed from, granted defendants' motions for summary judgmentdismissing the complaint, and denied plaintiff's cross motion to strike defendant Camba,Inc.'s answer for spoliation of evidence, unanimously modified, on the law, to denydefendants' motions, and otherwise affirmed, without costs.
Plaintiff alleges that she sustained personal injuries after she slipped and fell onliquid that was on the hallway floor of a homeless women's shelter operated by defendantCamba. Defendants Whitson's Food Corp. and Whitson's Food Service Corp.(collectively Whitson's Food) delivered prepared meals to the shelter on the day of theaccident. Plaintiff alleges that she routinely observed liquid at the accident location afterWhitson's Food completed its food deliveries and that she complained about the liquid toCamba's maintenance staff.
Camba failed to make a prima facie showing that it lacked constructive notice of theliquid on the floor. Although Camba's employee testified that she completed herinspection of the building about an hour before the accident, and that it was her usualcustom and practice to pass by the area where plaintiff claims she fell, she could notrecall whether she inspected the accident location itself that afternoon when she made herrounds (see Jahn v SHEntertainment, LLC, 117 AD3d 473, 473 [1st Dept 2014]). Her affidavit statingthat she did not observe a slippery substance or liquid on the hallway floor during herdaily rounds did not satisfy Camba's burden of showing it had no actual or constructivenotice of the dangerous condition alleged and that it did not exist for a sufficient lengthof time prior to the accident to permit Camba employees to discover and remedy it(see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).Camba also failed to present evidence regarding the shelter's cleaning schedule, andCamba's employee lacked personal knowledge regarding the shelter's maintenance (see [*2]Rodriguez v Board of Educ. of the City of N.Y., 107AD3d 651, 651-652 [1st Dept 2013]).
Even if Camba had met its initial burden, the record shows that there exists aquestion of fact as to whether it had notice of a recurring condition. Plaintiff's testimonythat she frequently would see liquid leaking from Whitson's Food's delivery crates at theaccident location, and that she complained to Camba's maintenance staff about the liquid,is sufficient to raise a triable issue of fact as to a recurring condition (see Uhlich vCanada Dry Bottling Co. of N.Y., 305 AD2d 107, 107 [1st Dept 2003]).
Whitson's Food, which had a contract with Camba to provide cooked meals for theshelter, failed to make a prima facie showing that it did not launch a force or instrumentof harm by dropping liquid on the floor when it delivered food to the shelter on the dayof the accident (see Jenkins vRelated Cos., L.P., 114 AD3d 435, 436 [1st Dept 2014]). The depositiontestimony from an employee of Whitson's Food was insufficient to show that Whitson'sFood did not cause or create the liquid condition, since he lacked personal knowledge asto whether the floor was clean after Whitson's Food delivered the food (Jackson v Manhattan Mall EatLLC, 111 AD3d 519, 520 [1st Dept 2013]).
The court providently exercised its discretion in determining that plaintiff was notentitled to sanctions. Plaintiff failed to establish that her case has been fatallycompromised as a result of Camba's alleged spoliation of surveillance video footage ofthe hours before her accident. Plaintiff has sufficient evidence to prove her case,including her own testimony, surveillance footage showing the accident itself, anddocuments defendants provided during discovery (see Shapiro v Boulevard Hous. Corp., 70 AD3d 474, 476[1st Dept 2010]). Plaintiff's February 9, 2010 letter requesting that Camba preserve thesurveillance footage of the accident did not indicate that plaintiff wanted Camba to retainthe surveillance footage for the hours preceding the accident (see Duluc v AC & L FoodCorp., 119 AD3d 450, 452 [1st Dept 2014], lv denied 24 NY3d 908[2014]). Therefore, Camba should not be penalized for failing to retain such footage(id.). Concur—Tom, J.P., Andrias, Feinman, Gische and Kapnick, JJ.