| Burke v Queen of Heaven R.C. Elementary Sch. |
| 2017 NY Slip Op 04593 [151 AD3d 1608] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| Kelly Burke, Respondent, v Queen of Heaven Roman CatholicElementary School et al., Appellants, et al., Defendant. |
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Thomas J. Speyer of counsel), fordefendants-appellants.
Dempsey & Dempsey, Buffalo (Catherine B. Dempsey of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), enteredMarch 17, 2016. The order granted the motion of plaintiff to strike the answer of, and for partialsummary judgment on liability against, defendants Queen of Heaven Roman CatholicElementary School and Queen of Heaven Roman Catholic Church.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying those parts of the motion seeking to strike the answer of defendants-appellants andseeking partial summary judgment on liability, and reinstating that answer, and plaintiff isgranted an adverse inference charge as a sanction under CPLR 3126, and as modified the order isaffirmed without costs in accordance with the following memorandum: Plaintiff commenced thisaction seeking damages for injuries that she sustained when she slipped and fell on stairs atpremises owned and operated by defendants. Plaintiff moved to strike the answer ofdefendants-appellants (defendants), and for partial summary judgment on liability against them,on the ground that defendants had destroyed and replaced the stairs after plaintiff had notifieddefendants of their intent to have their expert inspect the stairs. Defendants appeal from an orderthat granted plaintiff's motion.
In order to obtain sanctions for spoliation of evidence, plaintiff had the burden of showing"that the party having control over the evidence possessed an obligation to preserve it at the timeof its destruction, that the evidence was destroyed with a culpable state of mind, and that thedestroyed evidence was relevant to the party's claim or defense such that the trier of fact couldfind that the evidence would support that claim or defense . . . Where the evidenceis determined to have been intentionally or wil[l]fully destroyed, the relevancy of the destroyed[evidence] is presumed . . . On the other hand, if the evidence is determined to havebeen negligently destroyed, the party seeking spoliation sanctions must establish that thedestroyed [evidence was] relevant to the party's claim or defense" (Pegasus Aviation I, Inc. v Varig LogisticaS.A., 26 NY3d 543, 547-548 [2015] [internal quotation marks omitted]).
Defendants concede that the original condition of the stairway was relevant. Furthermore, anobligation to preserve the condition of the stairs existed because litigation had begun at the timethe stairs were replaced (see generallyArbor Realty Funding, LLC v Herrick, Feinstein LLP, 140 AD3d 607, 608 [2016]; Mahiques v County of Niagara, 137AD3d 1649, 1651-1652 [2016]). We agree with plaintiff that she met her burden ofestablishing that defendants destroyed the stairs with a culpable state of mind. As Supreme Courtproperly concluded, defendants' culpable state of mind was evidenced by their destruction of thestairs during the parties' ongoing debate about whether plaintiff had to disclose the name of herexpert to defendants before defendants would agree to the inspection (see Dzidowska v Related Cos., L.P.,148 AD3d 480, 480 [2017]; VOOMHD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [2012]). We thus agreewith plaintiff that the imposition of a sanction against defendant for spoliation of evidence waswarranted here (see CPLR 3126).
Nevertheless, we conclude that the court abused its discretion in striking defendants' answerand granting plaintiff partial summary judgment on liability based on defendants' destruction ofthe stairway (see Sarach v M&TBank Corp., 140 AD3d 1721, 1722 [2016]). In deciding whether to impose sanctions,and what particular sanction to impose, courts look to the extent that the spoliation of evidencemay prejudice a party, and whether a particular sanction is necessary as a matter of elementaryfairness (see Standard Fire Ins. Co. vFederal Pac. Elec. Co., 14 AD3d 213, 218-219 [2004]). The burden is on the partyrequesting sanctions to make the requisite showing (see Mohammed v Command Sec. Corp., 83 AD3d 605, 605 [2011],lv denied 17 NY3d 708 [2011]). "It is well established that 'a less drastic sanction thandismissal of the responsible party's pleading may be imposed where[, as here,] the loss does notdeprive the nonresponsible party of the means of establishing his or her claim ordefense' " (Sarach, 140 AD3d at 1722). Here, the record does not demonstratethat plaintiff has been left " 'prejudicially bereft' " of the means of prosecutingher action (Rodman v ArdsleyRadiology, P.C., 80 AD3d 598, 599 [2011]; see Sarach, 140 AD3d at 1722),given that plaintiff has in her possession, among other evidence of the condition of the stairs,photographs of the stairs taken after the commencement of this action. Thus, we conclude that anappropriate sanction is that an adverse inference charge be given at trial with respect to any nowunavailable evidence of the condition of the stairs (see Sarach, 140 AD3d at 1722;Mahiques, 137 AD3d at 1652-1653; Jennings v Orange Regional Med. Ctr., 102 AD3d 654, 656[2013]), and we modify the order accordingly. Present—Smith, J.P., Carni, DeJoseph,NeMoyer and Troutman, JJ.