Opinion
13466N Index No. 158411/16 Case No. 2020-03182
03-30-2021
Seskin & Seskin, New York (Scott H. Seskin of counsel), for appellant. Lawrence Heisler, Brooklyn (Harriet Wong of counsel), for respondents.
Seskin & Seskin, New York (Scott H. Seskin of counsel), for appellant.
Lawrence Heisler, Brooklyn (Harriet Wong of counsel), for respondents.
Gische, J.P., Singh, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (Lisa A. Sokoloff, J.), entered June 26, 2020, which granted plaintiff's motion for spoliation sanctions to the extent of directing that plaintiff could move in limine before the trial judge for an adverse inference charge if defendant failed to produce the requested incident occurrence report within 30 days of oral argument on the motion, unanimously affirmed, without costs.
The motion court providently exercised its discretion in deferring to the trial court whether or what sanction to impose on defendants for their failure to produce the report prepared by a token booth clerk in connection with an incident in which plaintiff was allegedly injured on a subway train. On this record plaintiff failed to establish that the incident occurrence report contained evidence critical to establishing her case, since it consists of her own account of the incident as recorded by the clerk (see Jackson v. Whitson's Food Corp., 130 A.D.3d 461, 462–463, 13 N.Y.S.3d 71 [1st Dept. 2015] ; Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 173, 666 N.Y.S.2d 609 [1st Dept. 1997] ).