The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 42, 43, 44, 45 were read on this motion to Dismiss Defense. Upon the foregoing documents, it is ordered that this motion is granted in part and denied in part.Plaintiff commenced this action after allegedly suffering injuries on August 13, 2015, when, while shopping at defendant’s Marshall’s Department Store in Rego Park, Queens, a table on display fell, striking plaintiff’s foot.Plaintiff now moves for an order, pursuant to CPLR 3126, striking defendant’s answer, dismissing defendant’s defenses as to liability, rendering a default judgment as to liability, or prohibiting defendant from introducing evidence of fault for defendant’s failure to respond to outstanding discovery. Plaintiff alleges that defendant failed to preserve video footage of the table falling on plaintiff’s foot, failed to provide the specifications and manufacturer of the subject table in response to demand for same, and failed to provide emails regarding the sending of any surveillance video or videos to defendant’s insurer. Defendant opposes, arguing (1) that the video it provided to plaintiff is the one and only video in defendant’s possession and that it indeed shows the incident in question, (2) that the subject table was actually sold on the day of the incident and that defendant has no ability at this point to produce relevant specifications and manufacturer information, and (3) that the emails plaintiff to which refers are irrelevant. Defendants also cross-move, pursuant to CPLR 3212, for summary judgment.“Under the common law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” (McDonnell v. Sandaro Realty, Inc., 165 AD3d 1094, 1095; see Morales v. City of New York, 130 AD3d 792, 793). “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (Golan v. North Shore-Long Is. Jewish Health Sys. Inc., 147 AD3d 1031,1032). However, “if the moving party is still able to establish or defend a case, then a sanction less severe than striking the pleadings of the offending party is appropriate” (see Peters v. Hernandez, 142 AD3d 980).In the matter at bar, at examinations before trial, two witnesses, one a former managerial employee of defendant and the other a Marshall’s store detective, both testified to having viewed a store-created surveillance video depicting a woman therein in proximity to a table who eventually begins to hold her foot. If those two witnesses are to be believed, then, at some point on or after the date of the subject accident, defendant was in possession of a video capturing images of at least some aspect of the alleged incident. Plaintiff is entitled to that video, and defendant’s employees should have known to preserve a copy of such video after the video was viewed. Plaintiff asserts that the only video provided by defendant thus far does not contain any of the images described at deposition by defendant’s employees. Defendant, in opposing plaintiff’s motion, does not offer any satisfactory explanation for the apparent inconsistency between the deposition testimony of its employees regarding the content of the video they watched and the content of the only video produced in discovery. Such circumstances certainly raise the spectre of spoliation — whether intentional or merely negligent.Nevertheless, since there is testimony by defendant’s employees as to the existence of the surveillance video and what it purportedly depicted, such testimony might be used to confirm that plaintiff was in fact at the defendant’s premises, and that, at some point, defendant’s employees observed surveillance video capturing some aspect of the incident or the immediate aftermath of the incident as alleged by plaintiff. Plaintiff thus, should still be able to present potentially persuasive evidence in support of her case, notwithstanding the apparent spoliation. Though some sanction is appropriate here, the court will exercise its discretion in favor of a sanction less drastic than the striking of defendant’s answer, entering default against defendant, dismissing defendant’s defenses, or prohibiting defendant from introducing evidence (Arbor Realty Funding, LLC v. Herrick Feinstein LLP, 140 AD3d 607). In the circumstances of this case, the sanction should be limited to the issuance of an adverse inference charge against defendant with respect to the missing surveillance video.With regard to plaintiff’s request for emails that were sent to defendant’s insurance company discussing the video, plaintiff is presumptively entitled to these items as the emails sought could lead to material information. Defendant is directed to provide such emails within 20 days of the date of this motion. To the extent defendant claims such emails do not exist, defendant is directed to provide an affidavit by a person with knowledge attesting that the emails requested do not exist and detailing the efforts made to comply with the court’s directive. Such person with knowledge, it should be noted, may be subject to court-ordered deposition in the — future depending upon the adequacy of defendant’s response.Regarding defendant’s cross-motion, “the proponent of a summary judgment motion must make prima facie showing of entitlement as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hospital, 68 N.Y2d 320, 324). The failure to make such prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers (id. at 324, 508). Defendant has not made an adequate showing to this court that there is no triable issue of fact with respect to whether defendant created a dangerous condition by its positioning of the subject table for display. Furthermore, the cross-moving papers have not established a lack of a triable issue as to constructive notice. Defendant has failed to proffer any inspection logs covering the area where the subject table was on display, or any other form memorializing the lack of any complaints or concerns regarding the tables on display at this store location, or any standard safety guidelines or protocols defendant followed in arranging the display in question. To the extent defendant argues plaintiff’s acts constitute an intervening cause, moreover, that is certainly a question for the trier of fact.Accordingly, it isORDERED that plaintiff is and shall be entitled to an issuance of an adverse inference charge against defendant with respect to the missing surveillance video displaying a woman in relation to a table on display at defendant’s Marshall’s Department Store in Rego Park, Queens, at the date and about the alleged time of the accident as set forth in the complaint and bill of particulars; and it is furtherORDERED that defendant is directed to provide the emails requested in plaintiff’s discovery demand within 20 days of the date of this motion, and to the extent defendant claims that such emails do not exist defendant is directed to provide an affidavit by a person with knowledge attesting that the emails requested do not exist and to state in detail the efforts conducted to comply with the court’s directive ; and it is furtherORDERED that the portion of plaintiff’s motion to strike defendants’ answer, or dismiss the defense of defendant as to liability or in the alternative rendering a judgment by default against defendants on the issue of liability is denied; and it is furtherORDERED that the portion of plaintiff’s motion for an order directing that all issues with regard to liability shall be resolved for the purposes of the instant action in accordance with the claims of plaintiff, including plaintiff’s claim that the table which fell on her foot was of substantial weight, is denied; and it is furtherORDERED that the portion of plaintiff’s motion seeking an order to be issued prohibiting defendant from opposing plaintiff’s claim that defendant is fully negligent in causing the subject table to fall and strike plaintiff on her left foot, or from producing evidence that defendant was not fully at fault for causing the table to fall, striking plaintiff on the left foot, or from alleging that plaintiff was in any regard responsible for the table falling and striking plaintiff on the left foot, is denied; and it is furtherORDERED that defendant’s cross-motion for summary judgment dismissing the complaint is denied in its entirety.This constitutes the decision and order of the court.Dated: 6/17/2019
