Opinion
Index 69109/2018
03-02-2021
ALVITA LIKTORIUS-BARSKY, Plaintiff, v. INTERCONTINENTAL HOTELS GROUP INC. D/B/A CANDLEWOOD SUITES, Defendant.
Unpublished Opinion
DECISION AND ORDER
HON. DAVID F. EVERETT JUSTICE OF THE SUPREME COURT
The following documents considered:
Notice of Motion (Sequence No. 2)/Attorney Affirmation/Exhibits/Affirmation in Opposition/Exhibits/Affirmation in Reply/Exhibits (NYSCEF documents 40-55, 71-88, 89-93)
Notice of Motion (Sequence No. 3)/Attorney Affirmation/Exhibits/Order on Adjournment Application/Affirmation in Opposition/Exhibits/Affirmation in Reply (NYSCEF documents 58-70, 96, 97-110, 113)
In Motion Sequence No. 2, the plaintiff, Alvita Liktorius-Barsky, moves, pursuant to CPLR 3126, to strike the answer of the defendant Intercontinental Hotels Group Inc. D/B/A Candlewood Suites, or alternatively, to impose sanctions for the defendant's failure to disclose information which ought to have been disclosed, and, pursuant to CPLR 3212, for summary judgment on the issue of liability. In Motion Sequence No. 3, the defendant moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint. The motions were recently reassigned to this Part. For reasons set forth below, the plaintiff's motion is granted in part and denied in part, and the defendant's motion is denied.
Factual and Procedural Background
This is a negligence action to recover money damages for personal injuries. The action was commenced by the filing via the New York State Courts E-Filing system (hereafter, "NYSCEF") of a Summons and Verified Complaint on November 15, 2018.
By letter dated May 23, 2018 (the 5/23/18 Letter), inter alia, the plaintiff's attorneys advised the defendant of her intent to pursue a claim for negligence and made demands concerning the preservation of various items and documentation.
The defendant appeared in the action by filing a Verified Answer via NYSCEF on January 7, 2019.
The plaintiff served the defendant with a Verified Bill of Particulars on March 19, 2019 (the Bill of Particulars). It is alleged in the Bill of Particulars that, inter alia, on April 25, 2018, at approximately 11:00 a.m., the plaintiff entered the front entrance of the defendant's hotel and slipped on the wet tile floor between two rain mats that had been placed in the lobby, resulting in injuries, including, but not limited to, a fracture of her left proximal humerus and a right ankle sprain (see Bill of Particulars, a copy of which is annexed to the Affirmation In Support Of Motion Pursuant To CPLR §3126 And CPLR §3212 [Plaintiff's Affirmation in Support], as Exhibit C [NYSCEF DOC. NO. 44] at ¶¶ 3-8).
A preliminary conference was scheduled for, and the parties executed, a Preliminary Conference Stipulation on, March 27, 2019, and the stipulation So Ordered by this Court (Lefkowitz, J.) was entered on March 29, 2019 (the PC Order).
The plaintiff served the defendant with a Notice for Discovery and Inspection on May 30, 2019 (the D&I Notice).
The plaintiff received the defendant's responses to the PC Order on June 3, 2019.
The defendant deposed the plaintiff on June 19, 2019.
The plaintiff received the defendant's responses to her D&I Notice on July 22, 2019.
On September 12, 2019, the plaintiff deposed Sofia Muro, who was, at the time of the occurrence, employed by the defendant as an operations manager, and Chierra Dikitanan, who was, at the time of the occurrence, employed by the defendant as a guest services representative. Each testified that she was present at the hotel when the incident occurred.
On October 21, 2019, the plaintiff served upon the defendant Post Deposition Demands. The plaintiff received the defendant's responses to her Post Deposition Demands on February 3, 2020.
The plaintiff served the defendant with a Demand for Jackson Affidavits dated February 10, 2020, responses to which demand she received on March 9, 2020.
Proof of service was not annexed to the copy of this document which was filed via NYSCEF as an exhibit to Plaintiff's Affirmation in Support.
A trial readiness conference was held on March 9, 2020, and a Trial Readiness Referee Report & Order, which was So Ordered by this court (Lefkowitz, J.), was entered on March 11, 2020 (the TR Order). Pursuant to the TR Order, inter alia, the action was marked ready for trial as all discovery had been completed or waived, and the plaintiff was directed to serve and file a note of issue and certificate of readiness for trial within twenty days. During the conference, the plaintiff requested that the court set a briefing schedule for the plaintiff to make a motion pursuant to CPLR 3126 for the defendant's alleged failure to disclose information which sought to have been disclosed. The presiding Court Attorney-Referee directed that the plaintiff comply with the TR Order and that she make such motion within the time period allotted therein - i.e., "within 45 days following the filing of the Note of Issue" (TR Order [NYSCEF DOC. NO. 36] at ¶[4]). However, shortly after the date of the conference, all litigation, including the filing of notes of issue and motions, was suspended due to the COVID-19 pandemic.
On June 5, 2020, the plaintiff filed a Note of Issue and Certificate of Readiness for Trial dated May 21, 2020.
On June 5, 2020, the plaintiff also made the instant motion pursuant to CPLR 3126 for the defendant's alleged failure to disclose information which ought to have been disclosed, and for other relief, (Motion Sequence No. 2) by filing via NYSCEF. The defendant filed papers in opposition via NYSCEF on July 17, 2020, and the plaintiff filed reply papers in further support via NYSCEF on July 30, 2020.
The defendant made the instant motion for summary judgment (Motion Sequence No. 3) by filing via NYSCEF on July 17, 2020. The plaintiff filed papers in opposition via NYSCEF on October 9, 2020, and Defendant filed reply papers in further support via NYSCEF on October 23, 2020.
Discussion
That Branch of the Plaintiffs Motion Which is Pursuant to CPLR 3126
The plaintiff alleges in support of her motion: that she stayed at Defendant's hotel during the night of April 24, 2018; that she left her room between 11:00 a.m. and 11:15 a.m. on the morning of April 25, 2018; that it was raining heavily as she exited the hotel via a side entrance and drove her car to the front of the hotel, where she exited her car and walked into the front entrance, which consisted of a mini-lobby that led to the main lobby; that she took two steps on a rain mat in front of the door from the mini-lobby to the main lobby, then fell as she stepped from the mat onto a wet tile floor (see Plaintiffs Affirmation in Support [NYSCEF DOC. NO. 41] at ¶¶ 20-21).
The plaintiff alleges that, despite her demands that it do so, the defendant failed to preserve, and in fact destroyed, the tiles upon which she slipped, a portion of the recording from the mini-lobby camera, and all of the recordings from two video cameras that surveilled the main lobby and front desk.
CPLR 3126 provides, in part, "[i]f any party...refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just[.]" "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...Where the evidence is determined to have been intentionally or willfully destroyed, the relevancy of the destroyed [evidence] is presumed...On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party's claim or defense" (Pegasus Aviation I, Inc. v Varig Logistics S. A, 26 N.Y.3d 543, 547-548 [2015] [internal citations and quotation marks omitted]). This Court has broad discretion to determine a sanction for the spoliation of evidence (see Pegasus Aviation I, Inc. v Varig Logistics S. A., 26 N.Y.3d at 551).
Here, the plaintiff fails to show that the defendant failed to preserve, or destroyed, video from any of its surveillance cameras with a culpable state of mind.
The plaintiff contends that the defendant was first put on notice of the need to preserve certain evidence in her 5/23/18 Letter, including a demand that the defendant preserve material from "video surveillance cameras at the front entrance which would have captured the location of the fall and Ms. Barsky" (5/23/18 Letter). At her deposition on June 19, 2019, the plaintiff was shown a video from a surveillance camera capturing the mini-lobby. The defendant avers that video from its surveillance cameras is routinely over-written every 90 days and that it has no preserved video from April 25, 2018, other than that which the plaintiff viewed during her deposition (see Affidavit Of No Records [Ex. A], a copy of which is annexed as part of Exhibit N [NYSCEF DOC. NO. 55] to Plaintiff's Affirmation in Support, at ¶¶4-7).
The video which the plaintiff viewed starts at 11:15 a.m., and ends at 11:25 a.m., on April 25, 2018. While watching the video, the plaintiff testified that it depicted her entering the mini-lobby at 11:21:44 (see Deposition of Alvita Liktorius-Barsky, a copy of which is annexed to Plaintiff's Affirmation in Support as Exhibit F [NYSCEF DOC. NO. 47], at page 59, lines 16-17), then taking five steps before stepping off of a mat and onto a tile floor where she began to fall at 11:21:54 (see id. at page 65, lines 8-10), had fallen to the floor by 11:21:57 (see id. at page 65, lines 17-22), and continued to lie on the floor until she allowed two women to help her up approximately ten or fifteen minutes after she fell (see id. at page 51, line 19 through page 52, line 24).
In other words, the plaintiff confirmed that the video from the mini-lobby camera captured the plaintiff entering the hotel, as well as the events leading up to, and the location, time, and aftermath of her fall. In light of the plaintiff's testimony, the defendant had reasonably and correctly concluded that the video from the mini-lobby camera was sufficient to respond to the demand in the plaintiff's 5/23/18 Letter, and that none of the mini-lobby video beyond 11:25 a.m., or any video from other surveillance cameras, need be preserved (compare e.g. Lilavois v JP Morgan Chase & Co., 151 A.D.3d 711, 711-712 [2d Dept 2017] [court providently exercised its discretion in granting that branch of the plaintiffs' cross motion which was to strike Chase's answer on the ground of spoliation of evidence only to the extent of directing that an adverse inference charge be given against Chase at trial with respect to surveillance video of the underlying incident if the jury does not credit testimony of Chase's witness that no surveillance video existed for the subject location]). Thus, the plaintiff fails to show that the defendant failed to preserve, or destroyed, video from any of its surveillance cameras with a culpable state of mind.
Moreover, the plaintiff fails to show either that video recorded by another camera, or recorded by the mini-lobby camera after 11:25 a.m., would support her claim, or that the destruction of such evidence renders her unable to do so (see e.g. Hirschberg v Winthrop-Univ. Hosp., 175 A.D.3d 556, 557 [2d Dept 2019] [denying plaintiff's spoliation motion where defendant preserved "videotape footage depicting the plaintiff's accident," but destroyed video depicting a longer time period]; Mendez v La Guacatala, Inc., 95 A.D.3d 1084, 1085-1086 [2d Dept 2012] [despite that defendant disposed of video intentionally or negligently, court reversed striking of answer where "plaintiff's ability to prove his case without video was not fatally compromised"]; compare SM v Plainedge Union Free Sch. Dist., 162 A.D.3d 814, 818-819 [2d Dept 2018] [holding that defendant failed to meet its obligation to preserve video from surveillance camera where it "acted negligently in unilaterally deciding to preserve only 24 seconds of footage and passively permitting the destruction of the remaining footage, portions of which were undisputedly relevant to the plaintiff's case"]).
Therefore, to the extent the plaintiff seeks an order imposing sanctions against the defendant for spoliation of videotape evidence recorded by its surveillance cameras, the motion is denied.
However, the plaintiff shows that the defendant's failure to preserve the tile floor was negligent.
The 5/23/18 Letter also included a demand "for the preservation of any and all instrumentalities, equipment, materials and/or substances involved in or contributing to this incident," as well as "any documentation regarding the placement, maintenance or repair of the . . .the front entrance" (5/23/18 Letter). Although there is no mention of tiles or a tile floor in the 5/23/18 Letter, the fact that they constitute instrumentalities, materials and substances within the meaning of the 5/23/18 Letter, as well as the proximate causative role which they may have played in Plaintiff's fall, is abundantly and undisputedly clear in the ten minutes of video footage from the mini-lobby camera that Defendant preserved in response to the 5/23/18 Letter. Thus, the defendant was on notice of the need to preserve the tiles and floor as early as May 23, 2018, and no later than July 24, 2018, when those ten minutes of footage would have been routinely over written had the defendant not taken steps to preserve it.
One of the defendant's employees avers that "[t]he floors in the front areas of the hotel. . .were changed in or about January 2019[, ]" that she searched and could find no records that indicate the exact date the floor was changed or the type of tile/floor that existed on April 25, 2018, and that she was able to "locate three of the old tiles and have secured them" (Affidavit Of No Records [Ex. B], a copy of which is annexed to Plaintiff's Affirmation in Support as part of Exhibit N [NYSCEF DOC. NO. 55] at ¶2). The defendant's employee does not aver that any of the three tiles she secured was actually part of the floor as it existed on April 25, 2018. The plaintiff alleges, and the defendant does not dispute, that the defendant did not notify the plaintiff that the floor was going to be changed prior to the change, and that the defendant did not preserve any of the tiles removed from the floor as it existed on April 25, 2018.
Another of Defendant's employees attests that the tile floor was removed and replaced as part of a brand-wide renovation in May 2019 (see Deposition of Sofia Muro, September 12, 2019, a copy of which is annexed to Plaintiff's Affirmation in Support as Exhibit D [NYSCEF DOC. NO. 45], at page 18, lines 3-24). In either event, however, removal and replacement occurred after Defendant was placed under a duty to preserve.
However, there is no allegation or evidence that the plaintiff made any effort to have an expert inspect the tiles and floor in situ, or that the defendant had an expert do so, during the eight months prior to their removal and replacement. Moreover, while the situation is less than ideal, the plaintiff has an opportunity to have an expert examine the three tiles which the defendant has secured, for whatever information may be gleaned from such examination concerning the characteristics and properties of such tiles generally, and she has the mini-lobby video.
Thus, while the plaintiff shows that the defendant's failure to preserve such evidence was negligent, and perhaps grossly so, the plaintiff does not show that the destruction of the tiles and floor was intentional or willful such as would warrant the striking of the defendant's Verified Answer (compare Lentini v Weschler, 120 A.D.3d 1200, 1201 [2d Dept 2014] [holding that court properly struck answer where defendant paved over brick walkway on which plaintiff fell "after receiving notice that the plaintiff intended to inspect it and after his own expert was afforded an opportunity to inspect the walkway prior to it being covered in cement...Further, the plaintiff demonstrated that the condition of the ground which was underneath the bricks was central to the prosecution of her case and that its permanent change in character preventing inspection and analysis was prejudicial, since she would be unable to rely on other evidence to prove her claims"] [internal citation omitted]).
Therefore, to the extent the plaintiff seeks an order imposing sanctions against the defendant for spoliation of the tiles and floor, the motion is granted to the extent of a negative inference charge against the defendant at trial with respect to the character, properties, and propensities of the tiles that made up the portion of the tile floor on which the plaintiff stepped and slipped. The precise content of said charge shall be determined by the trial court.
Summary Judgment Motions
CPLR 3212(b) provides, in part, that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Thus, the movant must submit evidentiary proof in admissible form which establishes that the movant is entitled to judgment as a matter of law, and one opposing the motion "must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "[I]n determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmovant" (Dorival v DePass, 74 A.D.3d 729, 730 [2d Dept 2010]).
Viewed in the light most favorable to the nonmovant, the evidence submitted by each party in support of their respective motions fails to establish that either is entitled to judgment as a matter of law. Even with the negative inference charge, there remain several material questions of fact as to the condition of the tiles and floor at the time of the incident, as well as to the issues of notice, causality, and liability. Therefore, both summary judgment motions are denied.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the branch of the plaintiffs motion which is pursuant to CPLR 3126 to impose sanctions against the defendant for spoliation of evidence is granted only to the extent that a negative inference charge will be issued at trial against the defendant with respect to the character, properties, and propensities of the tiles that made up the portion of the tile floor on which the plaintiff stepped and slipped, the precise content of said charge shall be determined by the trial court, and that branch of the plaintiffs motion is otherwise denied; and it is further, ORDERED that the branch of the plaintiffs motion which is pursuant to CPLR 3212 for summary judgment on the issue of liability against the defendant is denied; and it is further, ORDERED that the defendant's motion pursuant to CPLR 3212 for summary judgment dismissing the complaint is denied; and it is further, ORDERED that the plaintiff must, within ten days of the date of entry hereof, serve a copy of this Decision and Order, with notice of entry, upon the defendant; and it is further
ORDERED that the plaintiff must, within ten days after service of notice of entry as aforesaid, file proof of said service via NYSCEF; and it is further, ORDERED that the parties will appear in the Settlement Conference Part. Due to the COVID-19 public health emergency, the Clerk of that Part will direct the date, time, and method of the settlement conference.
The forgoing constitutes the decision and order of the Court.