Opinion
Argued May 11, 2000
July 24, 2000.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Schmidt, J.), dated June 30, 1999, which granted the defendants' motion for summary judgment dismissing the complaint and denied their cross motion, in effect, to impose a sanction upon the defendants for the spoliation of evidence.
Misrok Rosenbaum, LLP, Valley Stream, N.Y. (Elliott M. Rosenbaum and Kenneth I. Misrok of counsel), for appellants.
Curtis, Vasile, Devine McElhenny, Merrick, N.Y. (Robert M. Smith of counsel), for respondents.
Before: LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, WILLIAM C. THOMPSON, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. The defendants established a prima facie case showing entitlement to judgment in their favor as a matter of law. The record contained no evidence from which it could be concluded that the defendants had actual or constructive notice of the defective condition which allegedly caused the plaintiff's fall (see, Carlos v. New Rochelle Mun. Hous. Auth., 262 A.D.2d 515; Schultz v. New York Racing Assn., 253 A.D.2d 489; Paul v. New York City Tr. Auth., 244 A.D.2d 322).
The Supreme Court properly denied the plaintiffs' cross motion to impose a sanction for the spoliation of evidence (see, Moore v. Eyzenberg, 270 A.D.2d 468, [2d Dept., Mar. 27, 2000]; Popfinger v. Terminix Intl. Co. Ltd. Partnership, 251 A.D.2d 564).