| Dzidowska v Related Cos., L.P. |
| 2017 NY Slip Op 01810 [148 AD3d 480] |
| March 15, 2017 |
| Appellate Division, First Department |
[*1]
| Barbara Dzidowska, Respondent, v The RelatedCompanies, L.P., et al., Appellants, and Fujitec America, Inc., Doing Business as Fujitec Sergeof New York, Respondent. |
London Fischer LLP, New York (Brian P. McLaughlin of counsel), for appellants.
The Platta Law Firm, PLLC, New York (Brian J. Vannella of counsel), for respondent.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 11, 2016,which to the extent appealed from, granted plaintiff's motion for spoliation sanctions againstdefendants-appellants, denied defendants-appellants' cross motion to sanction plaintiff's counseland for summary judgment dismissing the complaint and all cross claims as against the RelatedCompanies, L.P. (Related) and 1616 First Company, LLC (First), unanimously affirmed, withcosts.
The court properly concluded that appellants failed to demonstrate that plaintiff's counselviolated the Rules of Professional Conduct, CPLR 3101 and 3120 or 22 NYCRR 130-1.1 (c),warranting sanctions, based on alleged conduct of an investigator.
However, the court properly sanctioned appellants for spoliation of certain videotapes, whichthey were notified by plaintiff's counsel to preserve, within days of the accident. Despite thisnotice, appellants preserved copies of only limited portions of the surveillance tape from onecamera and destroyed the footage for the entire relevant period from another camera located inthe elevator. Plaintiff showed that the portions of the tape that were recorded over were relevantto whether defendants had notice of elevator malfunctions prior to her accident. The courtproperly concluded that defendants' culpable state of mind was evidenced by their failure tocomply with plaintiff's request to preserve this evidence (see VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d33, 45 [1st Dept 2012]).
Related and First failed to establish that they did not own, manage or maintain the building.Their reliance largely on unidentified documents not before the court is insufficient to meet theirburden on summary judgment. Concur—Friedman, J.P., Andrias, Gische and Webber, JJ.[Prior Case History: 2016 NY Slip Op 30048(U).]