*1 Cross appeals from the order of the Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about November 29, 2016, which denied defendants’ motions for summary judgment dismissing the complaint as against them and plaintiffs’ motion for summary judgment on the issue of liability and for a spoliation charge.*2
Plaintiff and his mother, plaintiff Lateaqua Suarez, were living in a domestic violence shelter owned and operated by defendants Sammon-Build Center Housing Development Fund Corporation and Tolentine Zeiser Community Life Center (collectively, Sammon). Defendant Howard Security had been hired to provide, among other things, security for the residents of the shelter. On November 8, 2011, CB was being returned to the shelter by his father, Bobby B., when a man later identified as Mauricio Acosta approached Bobby B. for his jacket. Acosta pulled a gun, and in the ensuing struggle, the gun discharged, striking CB and leaving the four-year-old boy paralyzed from the waist down.CB and his mother commenced this action against Sammon and Howard Security, alleging that defendants breached their duty of care to CB by failing to bring him into the premises to safety. The motion court denied both plaintiffs’ and defendants’ motions for summary judgment. We agree that material issues of fact exist. We modify solely to grant plaintiffs an adverse inference charge for defendants’ failure to produce the security guards’ log book.Facts and Procedural BackgroundSammon’s “Statement of Client Rights and Client Code of Conduct” require that all children be in their units with a reasonable responsible adult by 9:00 p.m. This requirement was reiterated in the “Operating Rules,” which stated that residents were responsible for the safety of their children and that children must have adult supervision at all times. Residents who knew their children would be outside the premises following curfew were required to obtain permission from Sammon’s director.“Security Post Orders” provided for two “fixed stations of surveillance,” the guard booth and the indoor surveillance area. Two guards were to be on duty at all times, one stationed in each location.
