Opinion
2005-266 N C.
Decided March 27, 2006.
Appeal from an order of the District Court of Nassau County, First District (Steven M. Jaeger), dated September 24, 2004. The order denied defendants' motion for summary judgment and granted plaintiffs' cross motion for an order striking defendants' answer pursuant to CPLR 3126 and awarding them summary judgment as to liability.
Order unanimously reversed without costs, defendants' motion for summary judgment dismissing the complaint granted and plaintiffs' cross motion denied as academic.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
Tracey Huntley commenced the instant action to recover damages for personal injuries she sustained when she slipped and fell in a supermarket owned and/or operated by defendants. After discovery was completed, defendants moved for summary judgment, arguing that they did not create the condition upon which she allegedly slipped and that they lacked notice of its existence. She cross-moved for an order striking defendants' answer pursuant to CPLR 3126 and for summary judgment as to liability based upon the common law doctrine of spoliation of evidence due to the loss, by defendants' insurer, of a videotape which she alleged would have depicted the scene prior to her accident as well as her accident, and of photographs taken of the scene after she fell. Although there was no evidence that defendants' created the condition or had notice of its existence, the court denied defendants' motion. The court also granted her cross motion due to the spoliation of defendants' videotape and photographs.
The court found that the record lacked evidence that defendants created or had notice of the condition which allegedly caused Tracey Huntley to slip and fall, and she concedes that she is unable to present sufficient evidence to raise a triable issue of fact as to defendants' notice of the existence of the condition. "To establish a prima facie case of negligence in a so-called slip and fall' case, a plaintiff must demonstrate that the defendant either created the condition which caused the plaintiff's fall, or had actual or constructive notice of it" ( Graubart v. Laro Maintenance, 244 AD2d 457, 458). In the instant case, the record does not contain any evidence that the defendants had actual notice of a wet spot on the floor. Furthermore, although Tracey testified that her accident was witnessed by a man named Eli and that she knew him and where he lived, she failed to submit an affidavit from him or explain the failure to do so.
In light of the foregoing, defendants' motion for summary judgment should have been granted and plaintiffs' cross motion to strike the answer and for summary judgment on the ground of spoliation of evidence should have been denied as academic ( see Gloria v. MGM Emerald Enters., 298 AD2d 355).