Opinion
3561N, 306584/10.
03-28-2017
Jimmy MACIAS, Plaintiff–Respondent, v. ASAL REALTY, LLC, Defendant–Appellant.
Law Office of Steven G. Fauth, LLC, New York (Steven G. Fauth of counsel), for appellant. Friedman, Levy, Goldfarb & Green, P.C., New York (Andrew J. Windman of counsel), for respondent.
Law Office of Steven G. Fauth, LLC, New York (Steven G. Fauth of counsel), for appellant.
Friedman, Levy, Goldfarb & Green, P.C., New York (Andrew J. Windman of counsel), for respondent.
RICHTER, J.P., MAZZARELLI, KAHN, GESMER, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered November 9, 2015, which, in this action for personal injuries sustained when plaintiff slipped and fell in defendant's building, granted plaintiff's motion to strike defendant's answer to the extent of directing that an adverse inference charge be given at trial, unanimously affirmed, without costs.
The motion court exercised its discretion in a provident manner in ordering the lesser sanction of an adverse inference charge. Defendant's principal testified that the building superintendent regularly viewed the lobby surveillance tapes, and the superintendent admitted knowing that the video automatically erased itself approximately every two weeks. This knowledge, coupled with the superintendent being at the scene of plaintiff's fall in defendant's building immediately after it occurred, was a sufficient showing that defendant's destruction of the evidence was, at a minimum, negligent (see e.g. 320 W. 13th St., LLC v. Wolf Shevack, Inc., 105 A.D.3d 586, 964 N.Y.S.2d 38 [1st Dept.2013] ). Defendant's argument that a videotape of the entranceway where plaintiff fell is not relevant to his claim, is unpersuasive (see e.g. Gogos v. Modell's Sporting Goods, Inc., 87 A.D.3d 248, 926 N.Y.S.2d 53 [1st Dept.2011] ).
We have considered the remaining arguments and find them unavailing.