11458. COLETTE MALOUF, plf-res, v. EQUINOX HOLDINGS, INC., def-ap — EQUINOX HOLDINGS, INC., Third-Party plf-ap, v. LIFE FITNESS, INC., Third-Party def-res, REBECCA KRAUSS Third-Party def — Larocca Hornik Rosen Greenberg & Blaha LLP, New York (David N. Kittredge of counsel), for ap — Law Office of Robert Evan Trop, PLLC, Garden City (Robert E. Trop of counsel), for Colette Malouf, res — K & L Gates LLP, New York (David Short of the bar of the State of Illinois, admitted pro hac vice, of counsel), for Life Fitness, Inc., res — Order, Supreme Court, New York County (Paul Wooten, J.), entered October 26, 2012, which, insofar as appealed from, granted plaintiff’s motion for spoliation sanctions to the extent of precluding defendant from arguing at trial that the treadmill plaintiff was using at the time of her accident was operating properly or was free from defects, and granted the motion of third-party defendant Life Fitness, Inc., to strike the third-party complaint against it, unanimously affirmed, without costs.
In this action for personal injuries allegedly sustained by plaintiff on September 17, 2008, when she fell off a treadmill at defendant’s Soho location, defendant was unable to provide the treadmill for inspection or to provide any information as to how or when the treadmill was removed, other than an affidavit from a manager at the Soho location who believed that it was replaced as part of an equipment upgrade that would have occurred some time prior to September 2010. All paperwork concerning the treadmill was also missing. Plaintiff and thirdparty defendant established that defendant’s failure to take affirmative steps to preserve the treadmill constituted spoliation of evidence by demonstrating that defendant was on notice that the treadmill might be needed for future litigation (see Strong v. City of New York, __ AD3d __, 973 NYS 2d 152 [1st Dept 2013]). Although the instant action was not commenced until May 20, 2009, the evidence shows that plaintiff immediately reported the accident and a claims defense form was prepared by defendant’s employee and forwarded to its legal department (see id.; see also Kirkland v. New York City Hous. Auth., 236 AD2d 170, 173-175 [1st Dept 1997]). Accordingly, the motion court did not abuse its broad discretion in remedying defendant’s discovery failures by barring it from arguing at trial that the subject treadmill was operating properly or was free from defects.
