Tuesday, June 21, 2016

Dismissal of a complaint, and denial of a cross-motion for spoilation sanctions.

Practice point:  The Appellate Division affirmed dismissal where defendant satisfied its initial burden on summary judgment by establishing, prima facie, that any alleged defect in the stairway at issue and/or in its premises lighting was not a proximate cause of plaintiff's accident, and plaintiff failed to raise a triable issue of fact relating his accident and injuries to either.

The Appellate Division also found that court properly denied the cross motion for spoliation sanctions. Plaintiff failed to specify a particular defect that caused him to fall, and even if defendant should have maintained its video footage of the subject staircase, plaintiff cannot establish that the failure to preserve it left him without appropriate means to present a claim with incisive evidence, as is required for the imposition of sanctions.

Student note:  The court properly declined to consider the errata sheet even though it was timely served, because plaintiff made changes to his testimony without explaining why he was making them, as required by CPLR 3116(a).

Case:  Cataudella v. 17 John St. Assoc., LLC, NY Slip Op 04784 (1st Dep't June 16, 2016)

Here is the decision.

Tomorrow's issue: A 3211(a)(7) motion to dismiss.