Opinion
306 CA 14-01091
03-20-2015
Nicole MANLEY and Dwayne Manley, Plaintiffs–Respondents, v. RASPBERRIES CAFÉ & CREAMERY, INC., Defendant–Appellant.
Costello Cooney & Fearon, PLLC, Camillus (Terance V. Walsh of Counsel), for Defendant–Appellant. Brindisi, Murad, Brindisi & Pearlman, LLP, Utica (Anthony A. Murad of Counsel), for Plaintiffs–Respondents.
Costello Cooney & Fearon, PLLC, Camillus (Terance V. Walsh of Counsel), for Defendant–Appellant.
Brindisi, Murad, Brindisi & Pearlman, LLP, Utica (Anthony A. Murad of Counsel), for Plaintiffs–Respondents.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.
Opinion
MEMORANDUM:Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Nicole Manley when she was struck in the head and face by a large umbrella from the patio seating area of defendant's restaurant. Defendant disposed of the umbrella and was unable to locate the umbrella base, and plaintiffs moved for spoliation sanctions. We conclude that Supreme Court properly granted those parts of plaintiffs' motion seeking an order precluding defendant from presenting evidence concerning the condition of the umbrella and base, as well as an adverse inference charge (see generally Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 876 N.E.2d 1189 ). Contrary to defendant's contention, the court properly considered the extent that the spoliation of the evidence prejudiced plaintiffs (see Puccia v. Farley, 261 A.D.2d 83, 85, 699 N.Y.S.2d 576 ), and “[t]he sanction herein was ‘appropriately tailored to achieve a fair result’ ” (Gogos v. Modell's Sporting Goods, Inc., 87 A.D.3d 248, 255, 926 N.Y.S.2d 53 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.