Summary
holding that the a pool of water was not a "'direct consequence of the defendant's passive activity of' placing a bucket in the restroom"
Summary of this case from Lyman v. Petsmart, Inc.Opinion
04 CV 2193 (SJ).
August 14, 2006
LEVINE SLAVIT, New York, NY, By: Leonard S. Slavit, Esq., Attorney for Plaintiff.
GOLDSTEIN TANENBAUM, LLP, Carle Place, NY, By: Christopher R. Invidiata, Esq., Attorney for Defendant.
MEMORANDUM AND ORDER
Plaintiff James R. Buskey ("Plaintiff") brought this negligence action on April 20, 2004, against Boston Market Corporation ("Defendant") in the Supreme Court of the State of New York, Queens County (the "State Court"), seeking to recover damages for personal injuries sustained as a result of Plaintiff's "slip and fall" in a men's restroom at one of Defendant's restaurants. On May 26, 2004, Defendant removed this action from the State Court to this Court pursuant to 28 U.S.C. § 1441.
Before the Court is Defendant's motion for summary judgment (the "Motion"), pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, Defendant's Motion is DENIED.
FACTUAL BACKGROUND
For the purposes of this summary judgment motion, the Court notes that, as required, it has construed the facts in the light most favorable to the non-moving party — in this case, Plaintiff — "with all factual ambiguities resolved and all reasonable inferences drawn in his favor." Capobianco v. City of New York, 422 F.3d 47, 50 n. 1 (2d Cir. 2005) (citations omitted).
The following facts are undisputed unless otherwise noted. Plaintiff is a resident of Far Rockaway, New York. (Plaintiff's Deposition ("Pl.'s Dep.") 4:13-14, Jan. 14, 2005.) Defendant is a Delaware corporation doing business in New York. (Complaint ("Compl.") ¶¶ "First-Second.") Defendant owns and operates a Boston Market restaurant located at 90 Broad Hollow Road, Farmingdale, New York, in Suffolk County. (Compl. ¶ "Third").
On October 12, 2003, between the hours of 5:00 and 6:00 p.m., Plaintiff, who was accompanied by his aunt and brother, was at Defendant's restaurant. (Pl.'s Dep. 12:5-13, 13:8-24.) While waiting in line to order food with his aunt and brother, Plaintiff decided to leave the line and go use the men's restroom. (Pl.'s Dep. 15:3-6.) When Plaintiff, who was wearing rubber-soled boots, stepped into the restroom, he "saw a bucket or whatever on the floor behind the toilet," which was located approximately four or five feet from the door. (Pl.'s Dep. 16:17-22, 18:15-18.) The bucket was situated underneath a pipe that was coming out from the back of the toilet. (Pl.'s Dep. 17:2-8.) Upon entering the restroom, Plaintiff took no more than two steps before he slipped, fell to the floor and lost consciousness. (Plaintiff's Affidavit in Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Aff. Opp'n") at 2-3.) When Plaintiff awoke, he was lying on his back on the restroom floor in a pool of water and there were people standing around him, including the police and Defendant's employees. (Pl.'s Dep. 18:22-25, 19:2-4).
Prior to falling, Plaintiff was not paying attention to the floor and did not actually see what it was he slipped on. (Pl.'s Dep. 20:5-7.) Plaintiff "just remember[ed] slipping." (Pl.'s Dep. 21:2.) Nothing in the record indicates that anyone else actually saw Plaintiff's fall or what it was he slipped on. (Pl.'s Dep. 20:17-20.) Moreover, Plaintiff did not see water on the floor nor did he see a broken or leaking pipe in the restroom before he fell. (Pl.'s Dep. 20:5-7, 71:9-12.) Plaintiff also did not see any garbage or debris on the restroom floor. (Pl.'s Aff. Opp'n at 2).
According to Plaintiff's brother, Bernard Buskey ("Bernard"), he also decided to use the restroom not long after Plaintiff left the food line. (Pl.'s Aff. Opp'n, Ex. B at 1.) When he arrived at the men's restroom, Bernard discovered Plaintiff "lying unconscious on the stone tiled floor in a pool of water." (Pl.'s Aff. Opp'n, Ex. B at 1.) Bernard stated that "most of the bathroom floor was covered with water, and that there was a bucket behind the toilet overflowing with water." (Pl.'s Aff. Opp'n, Ex. B at 1-2.) Bernard further stated that the "water was dripping into the bucket from a leaking pipe." (Pl.'s Aff. Opp'n, Ex. B at 2.) According to Bernard, Plaintiff was unconscious for approximately ten minutes. (Pl.'s Aff. Opp'n, Ex. B at 2.) Unable to rouse Plaintiff, Bernard went to tell their aunt, Marion Buskey ("Marion"), that Plaintiff needed help. (Pl.'s Aff. Opp'n, Ex. B at 2.) Finding that Plaintiff was still unconscious upon their return, Bernard and Marion asked another patron to go get help while they stayed with Plaintiff. (Pl.'s Aff. Opp'n, Ex. B at 2.) Soon after, the store manager came by to inform them that he had called 911. (Pl.'s Aff. Opp'n, Ex. B at 2).
As part of Plaintiff's opposition to Defendant's Motion, Plaintiff also submitted the affidavit of Marion. However, the sum and substance of Marion's affidavit is identical to Bernard's and, for the sake of brevity, only Bernard's affidavit is set out here.
Officers from the Suffolk County Police Department arrived approximately ten minutes later and created a report of the incident. (Pl.'s Aff. Opp'n, Ex. B at 2.) The police report noted that Plaintiff "lost consciousness after entering the bathroom" which was "flooded with water from a leak." (Pl.'s Aff. Opp'n, Ex. E.) Plaintiff was transported by ambulance to New Island Hospital in Bethpage, New York. (Pl.'s Dep. 25:6-10; Plaintiff's Reply to Interrogatories ("Pl.'s Reply Interrog.") at 2). When he arrived at the hospital, Plaintiff was examined by a doctor and several technicians. (Pl.'s Dep. 27:5-6, 28:11-18.) The doctor informed Plaintiff that he had a sprained right shoulder and advised him to take over-the-counter Motrin for his headaches. (Pl.'s Dep. 30:20-25, 31:2-14.) The doctor also made a referral for Plaintiff to see a physical therapist, which he subsequently did. (Pl.'s Dep. 34:2).
Simon Jahan ("Jahan"), Defendant's assistant general manager at this particular restaurant, testified that he was working the closing shift from 2:00 to 11:00 p.m. on the day of the accident. (Defendant's Motion for Summary Judgment, Exhibit D ("Def.'s Mot. Summ. J., Ex. D") 5:12-16.) On that day, Jahan stated that the men's restroom was furnished with a toilet, a sink, one garbage can, paper towels and a tissue holder on the wall. (Def.'s Mot. Summ. J., Ex. D at 8:16-18, 15:18-19.) The garbage can was situated approximately three feet from the toilet. (Def.'s Mot. Summ. J., Ex. D at 9:23-25).
Jahan, who was standing by the cash register, testified that he first learned about Plaintiff's accident when he saw Marion and Bernard walk past him toward the men's restroom and open the door. (Def.'s Mot. Summ. J., Ex. D at 11:9-16, 24-25, 12:2-6.) As Jahan turned to look in their direction, he saw a man lying on the floor. (Def.'s Mot. Summ. J., Ex. D at 11:9-16, 24-25, 12:2-6.) He immediately called 911 before going over to Marion and Bernard, who informed him that Plaintiff "fell on the floor." (Def.'s Mot. Summ. J., Ex. D at 11:9-16, 24-25, 12:2-6.) According to Jahan, the men's restroom was checked approximately every hour and it did not have a leak problem on the day of Plaintiff's accident. (Def.'s Mot. Summ. J., Ex. D at 7:20, 23:18-25.) Jahan further stated that there was no water on the restroom floor, and it was, in fact, clean. (Def.'s Mot. Summ. J., Ex. D at 12:14-20.) However, Jahan also could not recall whether there was a leak problem in the restroom in the month prior to Plaintiff's accident. (Def.'s Mot. Summ. J., Ex. D at 32:19-22).
When asked if Jahan observed anyone cleaning up water between the time Plaintiff fell and the time the police arrived, Jahan provided that he was "the only person involved in this. That was the dinner time rush. No employees went there. What ever happened, I did." (Def.'s Mot. Summ. J., Ex. D at 14:11-17.) Jahan further denied that he cleaned or did anything to the floor during this time period. (Def.'s Mot. Summ. J., Ex. D at 14:18-24.) However, Jahan testified that he saw Marion and Bernard "sitting next to whatever his name is . . . [o]ne of them was sitting on his left and one of them on the right and they tried to put some water on his face." (Def.'s Mot. Summ. J., Ex. D at 39:9-18).
As a part of Defendant's company procedure, Jahan filled out a report of the incident. (Def.'s Mot. Summ. J., Ex. D at 36:21-25, 37:2.) However, since the commencement of this action, neither Jahan nor Defendant has been able to produce this report to Plaintiff. (Def.'s Mot. Summ. J., Ex. D at 37:3-18).
JURISDICTION
The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332, in that there is diversity of citizenship and the amount in controversy exceeds $75,000.
STANDARD OF REVIEW
A moving party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden is on the movant to establish the absence of any genuine issue of material fact. Celotex Corp., 477 U.S. at 323; see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). It is clear that "[i]n moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claims." Goenaga, 51 F.3d at 18; see also Celotex Corp., 477 U.S. at 324.The Court's responsibility in assessing the merits of a summary judgment motion is not to try the issues of fact, but rather to "`determine whether there are issues of fact to be tried.'"Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995) (quoting Katz v. Goodyear Tire Rubber Co., 737 F.2d 238, 244 (2d Cir. 1984)). As mentioned, the Court must draw all reasonable inferences and resolve all ambiguities in the nonmoving party's favor, and construe the facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Sutera, 73 F.3d at 16.
If, however, the moving party meets its initial burden of demonstrating "proof of facts that would entitle the movant to judgment as a matter of law, the nonmoving party is required under Rule 56(e) to set forth specific facts showing that there is a genuine issue of material fact to be tried." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) (citations omitted). To satisfy this requirement, the nonmoving party "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or `upon the mere allegations or denials of the [nonmoving] party's pleading.'" Id. at 532-33 (quoting Fed.R.Civ.P. 56(e)) (citations omitted).
DISCUSSION
I. A Prima Facie Negligence Claim
Defendant seeks summary judgment in this case on the ground that Plaintiff failed to establish a prima facie case of negligence. In New York, a prima facie case of negligence requires a plaintiff to demonstrate that: (1) the defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered damages as a proximate result of that breach. Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985) (citation omitted).
Because the Court's jurisdiction is premised on the parties' diversity of citizenship and the alleged negligence occurred in New York, the Court will apply New York state substantive law in this case. 28 U.S.C. §§ 1346(b) and 2674.
Here, as a restaurant open to the public, Defendant clearly had a duty to maintain its premises in a reasonably safe condition.See Hackbarth v. McDonalds Corp., ___ N.Y.S.2d ___, 2006 WL 1900318, at *1 (N.Y.App.Div. July 11, 2006) ("The owner [or operator] of a store must take reasonable care that [its] customers shall not be exposed to danger of injury through conditions in the store . . . which [it] invites the public to use.") (alterations in original) (citation and internal quotation marks omitted); Stemberga v. Term Security Corp., 292 A.D.2d 372, 373 (N.Y.App.Div. 2002) ("Landowners who hold their property open to the public have a general duty to maintain it in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries.") (citation omitted).
While Defendant had a duty to maintain its premises in a reasonably safe condition, in order to establish a prima facie case of negligence in a "slip and fall" case, Plaintiff is required to "demonstrate that the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition." Bykofsky v. Waldbaum's Supermarkets, Inc., 210 A.D.2d 280, 281 (N.Y.App.Div. 1994);Robinson v. Lupo, 261 A.D.2d 525 (N.Y.App.Div. 1999); Leary v. North Shore Univ. Hosp., 218 A.D.2d 686 (N.Y.App.Div. 1999);Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 437 (N.Y.App.Div. 1998) (citations omitted).
However, as the moving party seeking summary judgment, Defendant bears the burden of making a prima facie showing that it neither created a dangerous condition nor had actual or constructive notice of it as a matter of law. Curtis v. Dayton Beach Park, 23 A.D.3d 511, 512 (N.Y.App.Div. 2005) (citations omitted). Once Defendant makes out such a showing, "[i]t is then incumbent upon plaintiff to make an affirmative evidentiary showing that a genuine issue of fact exist[s]." Maiorano v. Price Chopper Operating Co., Inc., 221 A.D.2d 698, 699 (N.Y.App.Div. 1995) (citation omitted). A showing by Plaintiff that is based upon "surmise, conjecture, speculation or assertions [is] without probative value" and will be insufficient to defeat summary judgment. Id. (citation omitted).
A. Creation of a Dangerous Condition
In his Complaint, Plaintiff asserts that Defendant created a "condition fraught with hazard and danger" by "permitting the surface of the floor in the restroom to become flooded with water which was leaking from a pipe," causing Plaintiff to slip and fall. (Compl. ¶ "Fourteenth.") Defendant argues that the Complaint contains nothing more than "speculation, surmise and conjecture" that Defendant created a dangerous condition that allegedly caused Plaintiff's fall. (Defendant's Memorandum of Law in Support of Motion for Summary Judgment ("Def.'s Mem. L. Supp. Summ. J.") at 2-3.) According to Defendant, the fact that Plaintiff does not know what caused him to fall is fatal to his claim that Defendant was responsible for a dangerous condition. (Def.'s Mem. L. Supp. Summ. J. at 2-3).
In order for the Court to find that Defendant created a dangerous condition, there must be "some affirmative act on the part of [Defendant]." Gonzalez v. Wal-Mart Stores, Inc., 299 F. Supp. 2d 188, 192 (S.D.N.Y. 2004) (citing Fink v. Bd. of Educ. of the City of New York, 117 A.D.2d 704 (N.Y.App.Div. 1986); see also Ouarles v. Columbia Sussex Corp., 997 F. Supp. 327, 330 (E.D.N.Y. 1998) (noting that, in order to impute to defendants the creation of coffee puddle in hotel lobby, there must be "conduct on the defendants' part which demonstrably increases the risk of creating the condition"). In New York, the creation of a dangerous condition can also be inferred through circumstantial evidence. Olsen v. K Mart Corp., No. 04 CV 3648, 2005 WL 2989546, at *4 (E.D.N.Y. Nov. 8, 2005) (citation omitted). "However, speculation absent any evidence, direct or circumstantial, will not defeat a motion for summary judgment." Id. If there is evidence that Defendant created a dangerous condition, "it is irrelevant for establishing liability whether [Defendant] had actual or constructive notice of the condition." Id. at *5 (citation omitted).
Construing the evidence in the light most favorable to Plaintiff, the record does not establish that Defendant created or caused the floor in the men's restroom to be inappropriately wet and slippery. Plaintiff maintains that Defendant's negligence can be inferred by the fact that: (1) Plaintiff remembered slipping upon taking no more than two steps into the restroom; (2) he observed a bucket on the floor behind the toilet, and (3) he was lying in water when he regained consciousness. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Mem. L. Opp'n") at 11-12.) Contrary to Plaintiff's contention, the mere fact that there was a bucket on the floor in the restroom at the time of Plaintiff's fall is not enough to impute to Defendant the creation of a dangerous condition. Even if Plaintiff were lying in water, there is no evidence in the record revealing how the water got on the floor or that the water condition was a "direct consequence of the defendant's passive activity of" placing a bucket in the restroom. Quarles, 997 F. Supp. at 330. Plaintiff admitted that he did not see water, debris or a leaking pipe upon entering the restroom. (Pl.'s Dep. 20:5-7, 71:9-12; Pl.'s Aff. Opp'n at 2.) Neither Plaintiff nor any other witnesses actually saw what caused Plaintiff to slip and fall. (Pl.'s Dep. 20:5-7, 17-20.) Moreover, there is no indication that any of Defendant's employees were in the vicinity of Plaintiff's accident attempting to fix a leaking pipe. Finally, the fact that Plaintiff found his clothes wet upon regaining consciousness is also "insufficient to raise a question of fact in this regard." Kuchman v. Olympia York, USA, Inc., 238 A.D.2d 381, 382 (N.Y.App.Div. 1997). Without more, there is no evidence to suggest that Defendant took "some affirmative act," to create a dangerous condition, and "absent evidentiary proof in admissible form to prove otherwise, the plaintiff has not raised a triable issue of fact." Quarles, 997 F. Supp. at 331.
B. Notice
Although the Court concludes Plaintiff has failed to establish that Defendant created the allegedly dangerous condition, Defendant must also make a prima facie showing that it did not have actual or constructive notice of it. Curtis, 23 A.D.3d at 512. Once such a showing is made, Plaintiff may only proceed with his claims if Plaintiff is able to raise an issue of fact as to whether Defendant had actual or constructive notice of the dangerous condition that caused Plaintiff's injuries. See Fink, 117 A.D.2d at 704 (citation omitted).
1. Actual Notice of a Dangerous Condition
Defendant denies that it had actual knowledge or notice of an alleged water condition on the floor of the men's restroom. (Def.'s Mem. L. Supp. Summ. J. at 4-7.) Actual notice requires a showing that Defendant was aware of a dangerous condition.Quarles, 997 F. Supp. at 332. Defendant is aware of a dangerous condition if it has either created the condition or has received reports or complaints about the condition, "such that [it has] actual knowledge of the defect's existence," Id. (citation omitted). When a dangerous condition is a combination of conditions, notice of all those conditions is required. Wisner v. United States, 154 F.R.D. 39, 45 (N.D.N.Y. 1994).
In this case, Plaintiff has failed to raise an issue of fact as to whether Defendant had actual notice of an alleged water condition. In his deposition testimony, Defendant's witness, Jahan, provided that he "inspected the bathroom hourly, and he saw no water on the floor and was aware of no leaking pipes." (Defendant's Affirmation in Reply ("Def.'s Affirm. Reply") ¶¶ 7, 10.) In opposition, Plaintiff asserts only that Jahan is not credible and "such dishonest and improper conduct clearly raises a triable issue of fact . . . and warrants denial of summary judgment." (Pl.'s Mem. L. Opp'n at 7.) However, not only are issues of credibility generally not relevant at the summary judgment stage, see Dyke v. McCleave, 79 F. Supp. 2d 98, 107 (N.D.N.Y. 2000), but also Plaintiff has not provided any support for his conclusory assertions. At no point did Plaintiff ever speak to Defendant or its employees about the existence of water on the restroom floor. (Pl.'s Dep. 69:15-19.) Moreover, there is no evidence that Defendant received complaints regarding a water condition in the restroom from Bernard, Marion, or any other patrons present at Defendant's restaurant on the day of the accident, either before or after Plaintiff's fall. (Pl.'s Dep. 69:20-25, 70:10-13.) Finally, even if Defendant did place a bucket to capture leaking water, there is no indication that Defendant knew that water had overflown onto the restroom floor. Accordingly, Plaintiff has not raised an issue of fact with respect to the element of actual notice.
2. Constructive Notice of a Dangerous Condition
Since Plaintiff cannot show that Defendant created or had actual notice of a water condition that allegedly caused his accident, Plaintiff must show that Defendant had constructive notice of it to survive summary judgment. See Collins v. Grand Union Co., 201 A.D.2d 852 (N.Y.App.Div. 1994). In New York, "to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [D]efendant's employees to discover and remedy it." Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837 (1986) (citations omitted). To establish constructive notice. Plaintiff must present proof of either how the substance got there, or how long it was there before his fall. Id. at 838. Defendant's general awareness of a dangerous condition is not enough to establish liability. See Piacquadio v. Reccine Realty Corp., 84 N.Y.2d 967, 969 (1994) (citations omitted).
Here, there is sufficient evidence to raise a triable issue of fact as to whether the alleged water condition in the restroom was visible and apparent. See Fay v. Bass Hotels and Resorts. Inc., No. 00 CV 9107, 2003 WL 21738967, at *4 (S.D.N.Y. July 28, 2003). Although Plaintiff admitted that he did not actually see what he slipped on, he did testify that he saw a bucket near the toilet before he fell, after having taken no more than two steps into the restroom. (Pl.'s Dep. 17:19-21, 19:23-24, 20:5-7.) Moreover, the sworn affidavit of Bernard, who came into the men's restroom "less than a minute" after Plaintiff, provides that "most of the bathroom floor was covered with water, and . . . water was leaking into the bucket from a leaking pipe." (Pl.'s Aff. Opp'n Ex. B at 1-2.) Marion, who entered the restroom only a few minutes after Bernard, also testified to the same condition in the restroom. (Pl.'s Aff. Opp'n, Ex. C at 1-2).
There is also sufficient evidence to raise a triable issue of fact as to how long the water condition existed prior to Plaintiff's accident. In addition to seeing water on the floor and from a leaking pipe, Bernard and Marion also provided that the "bucket behind the toilet [was] overflowing with water." (Pl.'s Aff. Opp'n, Ex. B at 1-2, Ex. C at 2.) Viewed in the light most favorable to Plaintiff, a reasonable jury could infer from these facts that water had been dripping into the bucket from a leaking pipe for quite some time. Moreover the question of how much time is "sufficient to warrant constructive notice of a hazard is clearly an issue for the trier of fact, and not an issue that can be decided as a matter of law." Goddard v. Delta Airlines, Inc., No. 91 CV 2254, 1997 WL 12022, at *3 (E.D.N.Y. Jan. 8, 1997). Thus, Plaintiff has demonstrated a genuine issue of material fact sufficient to defeat summary judgment.
II. Spoliation
Plaintiff also argues that Defendant is not entitled to summary judgment because it is guilty of spoliation of evidence and "such dishonest and improper conduct clearly raises a triable issue of fact as to the party's credibility, and warrants denial of summary judgment." (Pl.'s Mem. L. Opp'n at 6-7).
Spoliation has been defined as "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West v. Goodyear Tire Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). "The spoliation of evidence germane `to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction.'"Byrnie v. Town of Cromwell. Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)).
Under Rule 37(b) of the Federal Rules of Civil Procedure, a federal district court may impose sanctions upon a finding that a party spoliates evidence in violation of a court order. Occhino v. Citigroup. Inc., No. 03 CV 5259, 2005 WL 2076588, at * 11 (E.D.N.Y. Aug. 26, 2005). However, even in the absence of a court order, a district court, in the exercise of its inherent power to control litigation, may still impose sanctions for spoliation.Id. The rationale for the imposition of sanction is to: "(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party." Id. (citation and internal quotation marks omitted).
In order to establish that sanctions are justified, Plaintiff must prove: (1) that Defendant had an obligation to preserve the evidence; (2) that Defendant acted culpably in destroying the evidence; and (3) that the evidence would have been relevant to Plaintiff's case, in that a reasonable jury could conclude that the evidence would have been favorable to Plaintiff's case. See Occhino, 2005 WL 2076588, at *11 (citing Golia v. The Leslie Fay Co., Inc., No. 01 CV 1111, 2003 WL 21878788, at *9 (S.D.N.Y. Aug. 7, 2003).
Here, Plaintiff argues that Defendant is guilty of spoliation because Defendant has failed to produce the accident report described in Jahan's February 24, 2005 deposition testimony. (Pl.'s Mem. L. Opp'n at 7.) According to Plaintiff, Defendant has only looked for the document within the restaurant's office and has not extended its search to Defendant's corporate offices, insurance files, "or somewhere else." (Pl.'s Mem. L. Opp'n at 8.) Thus, any claim that Defendant cannot find the report, in Plaintiff's view, is disingenuous, and Defendant should not be entitled to summary judgment. (Pl.'s Mem. L. Opp'n at 7-8.) Defendant, in turn, maintains that it cannot find the report and does not know where it is. (Def.'s Aff. Reply ¶ 16.) Notwithstanding the missing accident report, Defendant contends that Plaintiff has already had a full opportunity to question Jahan and the contents of the report. (Def.'s Aff. Reply ¶ 16.) As such, according to Defendant, the missing report does not prejudice Plaintiff's case in any way. (Def.'s Aff. Reply ¶ 17).
With respect to the first element of spoliation, "[a] party has a duty to retain evidence that it knows or reasonably should know may be relevant to pending or future litigation." Occhino, 2005 WL 2076588, at *12. Jahan testified that it was a part of his duties to prepare accident or incident reports when a customer is injured or ill at the restaurant. (Def.'s Mot. Summ. J., Ex. D at 35:3-8.) According to Jahan, the accident report is a computerized form, and he only filled out whatever information the form requested. (Def.'s Mot. Summ. J., Ex. D at 36:24-25, 37:2.) These forms, then, are clearly business records and Defendant had a duty to retain them.
If a court concludes that a defendant had a duty to preserve the missing evidence, the court must then determine whether the defendant acted with a culpable state of mind in failing to produce or destroying the evidence. See Kronisch, 150 F.3d at 127 (citation omitted). The law in the Second Circuit "is not clear on what state of mind a party must have when destroying" relevant evidence. Byrnie, 243 F.3d at 107-108 (citation omitted). In some cases, the law has required a showing of intentional destruction of evidence; in other cases, the law has "required action in bad faith; and at still other times [the law has allowed] . . . an adverse inference based on gross negligence." Id. at 108 (citation omitted). As a result, the Second Circuit has determined that "a case by case approach is appropriate." Id. (citation omitted).
Although Defendant asserts that it has attempted but cannot find the accident report, Jahan testified that, in preparation for and in the month prior to his deposition, he "pull[ed] out some of the reports and was looking at the paper." (Def.'s Mot. Summ. J., Ex. D 38:2-3.) Jahan further stated that he reviewed "some of the papers that my insurance company sent to me. I don't know if I should bring it. They sent me the report." (Def.'s Mot. Summ. J., Ex. D 36:2-4.) In light of this testimony, it is certainly possible, if not likely, that a reasonable jury could infer that the report is unfavorable to Defendant, and that Defendant withheld the accident report in fear of the present litigation. See Kronisch, 150 F.3d at 127. Moreover, since the veracity of Jahan's statement that the report is missing because he cannot find it "is an issue of credibility best left for trial," the Court concludes, for summary judgment purposes, that the failure to produce the report was intentional.See Id.
Lastly, Plaintiff must also demonstrate that the missing evidence is relevant to the contested issue. Occhino, 2005 WL 2076588, at *13. The Court has no doubt that the missing accident report is relevant to the present litigation. Although Plaintiff has been given a full opportunity to question Jahan about his duties and the contents of the report during deposition, the report may also contain other relevant information that might shed light on the condition of the restroom. As such, the Court agrees with Plaintiff that, due to Defendant's spoliation of evidence, denial of summary judgment is a warranted sanction.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is hereby DENIED. The parties shall appear for a final pretrial conference before the Court on Friday, September 1, 2006, at 9:30 a.m.SO ORDERED.