Opinion
03-15-2016
Lucila PARRA, Plaintiff–Respondent–Appellant, v. The CITY OF NEW YORK, Defendant, 175 Dyckman LLC, et al., Defendants–Appellants–Respondents.
Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for appellants-respondents. Reardon & Sclafani, P.C., Tarrytown (Michael V. Sclafani of counsel), for respondent-appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for appellants-respondents.
Reardon & Sclafani, P.C., Tarrytown (Michael V. Sclafani of counsel), for respondent-appellant.
Opinion
Order, Supreme Court, New York County (Louis B. York, J.), entered May 9, 2014, which denied defendants 175 Dykman LLC and Payless Shoesoure, Inc.'s (defendants) motion for summary judgment dismissing the complaint and denied plaintiff's cross motion to strike defendants' answer for spoliation of evidence, unanimously modified, on the law, to grant defendants' motion, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint as against said defendants.
In this action for personal injuries allegedly sustained by plaintiff when she tripped over a sidewalk defect, defendants demonstrated that they lacked actual and constructive notice of the defective condition. Defendants submitted plaintiff's testimony that she had never seen the defect before, and had no knowledge of prior accidents or complaints and the testimony of defendant Payless's assistant store manager that the sidewalk was cleaned every morning, no defects were noted, and there were no complaints or prior accidents (see Gomez v. Congregation K'Hal Adath Jeshurun, Inc., 104 A.D.3d 456, 961 N.Y.S.2d 100 [1st Dept.2013] ). The Big Apple map, which was filed more than six years prior to the accident, was insufficient to raise a triable issue as to constructive notice since there was no evidence that the condition shown on that map was the same defect that caused plaintiff's fall.
The court properly denied plaintiff's cross motion for sanctions based on the supposed re-paving of the sidewalk where plaintiff was injured. Plaintiff failed to establish that defendants had an obligation to preserve the sidewalk in its alleged dangerous condition and that they destroyed the evidence “with a culpable state of mind” (Duluc v. AC & L Food Corp., 119 A.D.3d 450, 451, 990 N.Y.S.2d 24 [1st Dept.2014], lv. denied 2014 N.Y. Slip Op. 87999, 2014 WL 5437040 [2014][internal quotation marks omitted] ).