The following papers number 1 to 15 read on this motion by Delta Elevator Inspection Corp. (“Elevator”) for an order: (1) granting summary judgment to Elevator and dismissing Martha Suero-Miller (“Ms. Suero-Miller” or “plaintiff’) complaint and any and all cross-claims against it; or alternatively; (2) dismissing plaintiff s complaint for spoliation of key evidence; or (3) granting Elevator summary judgment as to its cross-claims against Berken Building Company, LLC (“Building”) and Gabriel Management (“Gabriel Management”); and (4) allowing for an adverse inference charge against plaintiff at the time of trial for spoliation of key evidence. Moreover, Building and Gabriel Management cross-move for an order: (1) granting summary judgment to Building and Gabriel Management and dismissing the plaintiff s complaint and any and all cross-claims against them; or alternatively; (2) dismissing plaintiff s complaint for spoliation of evidence; (3) granting Building and Gabriel Management summary judgment on their cross-claims against Elevator; and (4) allowing for an adverse inference charge against plaintiff at the time of trial for spoliation of key evidence. Papers Numbered Notice of Motion-Affirmation-Exhibits-Service 01-04 Notice of Cross-Affirmation-Partial Opposition-Service 05-07 Plaintiff s Affirmation in Opposition-Exhibits-Service 08-10 Building’s Affirmation in Opposition to Cross Motion-Exhibits 11-12 Elevator’s Reply Affirmation-Exhibits-Service 13-15 Upon the foregoing papers, it is ordered that the motion and cross-motion are combined herein for disposition, and determined as follows: BACKGROUND This is an action to recover damages for personal injuries allegedly sustained by Ms. Suero-Miller. For approximately twenty-nine (29) years, the plaintiff has been employed at the New York City Administration for Children’s Services (“ACS”). Her office is on the third floor of a five-story building located at 165-15 Archer Avenue, Jamaica, New York (“subject premises”). On June 20, 2014, Garbriel and Elevator executed a Elevator Service Agreement (“the “Contract”), wherein Elevator contracted to service the elevators as of July 1, 2014. Pursuant to the contract, Elevator was required to perform monthly maintenance of the elevators. After each inspection, the mechanic is supposed to sign a motor room log (the “log”). Moreover, pursuant to the contract, Building agreed to indemnify and hold Elevator harmless against any liability or claims “that [ELEVATOR] may incur by reason of its obligations under or the services it provides pursuant to or in connection with the above for personal injury…occurring in, about, or on the said equipment where [ELEVATOR'S] responsibility is established exclusively by inference pursuant to doctrine of res ipsa loquitor and without proof of any specific negligent act or omission on [ELEVATOR'S] part.” The plaintiff alleges that on September 5, 2014, at approximately 8:20 a.m., she was caused to trip and fall due to a mis-leveled elevator at the subject premises. The plaintiff testified that her right heel was caused to get caught between the elevator and the third floor because of the mis-level elevator. She also testified that the elevator car was lower than the third floor, causing her to trip. Moreover, the plaintiff testified that while she was waiting for EMS, she took a photograph of the mis-leveled elevator; and she observed the same elevator mis-level approximately one inch. As a result of the subject accident, she allegedly sustained multiple injuries, including a fractured left wrist and left knee injuries, which required surgery. On March 10, 2016, the plaintiff commenced the instant action against the owner of the building, its managing agent and the elevator company, who are Building, Gabriel Management and Elevator, respectively. On June 17, 2016, issue was joined wherein, Elevator interposed an answer. Thereafter, on June 20, 2019, plaintiff filed a Note of Issue and Certificate of Readiness for Trial (“Note of Issue”), with the clerk of the court, requesting this action be placed on the court’s trial calendar. On or about October 16, 2019, Elevator moved for summary judgment, pursuant to CPLR §3212; and on October 22, 2019, Building and Gabriel Management cross-moved for the same relief. In support of the instant motion, Elevator argues that”…there is not one scintilla of evidence that Elevator was on notice of an alleged defective condition involving the subject elevator prior to Plaintiff’s accident, nor is there any evidence that a defective condition involving the elevator existed at all at the time of her accident.” Alternatively, Elevator argues that in the event plaintiff’s complaint is not dismissed on this ground, Elevator seek an order dismissing the complaint based on her disposal of critical evidence (i.e., her 3 inches high heel shoes). In opposition, the plaintiff asserts a number of arguments. First the plaintiff argues that Elevator is relying upon the Prehospital Care Report Summary from the New York City Fire Department (“FDNY”), which is inadmissible evidence: these records are not certified, it is unclear who spoke to the plaintiff, and the plaintiff did not sign the form. Second, the plaintiff argues that the Worker’s Compensation Employee Claim form is consistent with her testimony: In particular, it states that “while working I tripped and fell.” Third, the plaintiff argues “…ELEVATOR never produced any maintenance records, repairs records, log books, “daily” log and/or inspection records for the subject elevators.” Lastly, the plaintiff argues that”…this court should find that defendant’s lack of records creates questions of fact as to whether all the herein defendants had actual and/or constructive notice of the dangerous mis-leveling condition of the elevator that caused plaintiff’s accident. The fact that the herein defendants have provided none of the above-mentioned records should create questions of fact as to what information the defendants are hiding related to their elevators.” In reply, counsel argues that plaintiff’s opposition fails to set forth any credible evidence that Elevator was on notice of an alleged defective condition involving the subject elevator prior to plaintiff’s accident, nor does it set forth any evidence that a defective condition involving the elevator existed at the time of her accident. LEGAL ANALYSIS A. Branch of Defendants’ Motion for Summary Judgment — Pursuant to CPLR 3212 “Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law” (Reyes v. Arco Wenworth Mgt. Corp., 83 AD3d 47, 54 [2d Dept 2011], citing Andre v. Pomeroy, 35 NY2d 361, 364 [1974]; see also Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012]). A summary judgment movant must show prima facie entitlement to judgment as a matter of law by producing sufficient admissible evidence demonstrating the absence of any material factual issues (CPLR §3212)(b); Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1984]). Failure to make such a showing requires denying the motion, regardless of the sufficiency of any opposition (Vega, 18 NY3d at 503). The opposing party overcomes the movant’s showing only by introducing “evidentiary proof in admissible form sufficient to require a trial of material questions” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Furthermore, considering a summary judgment motion requires viewing the evidence in the light most favorable to the motion opponent (Vega, 18 NY3d at 503). Nevertheless, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat a summary judgment motion (Zuckerman, 49 NY2d at 562). “The court’s function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues” (Ruiz v. Griffin, 71 AD2d 1112, 1115 [2d Dept 2010] [internal quotations marks omitted]). Furthermore, it is well settled that “[a] landowner has a duty to maintain its premises in a reasonably safe condition.” (Aleman v. 760 8th Av. Rest., Inc., 187 AD3d 1106 [2d Dept 2020]; Van Dina v. St. Francis Hosp., Roslyn, N.Y., 45 AD3d 673, [2d Dept 2007]; see also Basso v. Miller, 40 NY2d 233, 241 [1976]). “Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” (Ash v. City of New York, 109 AD3d 854 [2d Dept 2013]; see Mei Xiao Guo v. Quong Big Realty Corp., 81 AD3d 610, 610-611 [2d Dept 2011]; Melnikov v. 249 Brighton Corp., 72 AD3d 760 [2d Dept 2010]). “However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” (Ash v. City of New York, 109 AD3d 854 [2d Dept 2013]; see McFadden v. 726 Liberty Corp., 89 AD3d 1067 [2d Dept 2011]; Patrick v. Costco Wholesale Corp., 77 AD3d 810 [2d Dept 2010]; Blochl v. RT Long Is. Franchise, LLC, 70 AD3d 993 [2d Dept 2010]; Miller v. 7-Eleven, Inc., 70 AD3d 791 [2d Dept 2010]). “Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation” (Ash v. City of New York, 109 AD3d 854 [2d Dept 2013]; see Alabre v. King Flatland Car Care Ctr., Inc., 84 AD3d 1286 [2d Dept 2011]; Manning v. 6638 18th Ave. Realty Corp., 28 AD3d 434, 435 [2d Dept 2006]). Here the defendants “failed to demonstrate, prima facie, that it did not have constructive notice of the allegedly defective condition that caused the plaintiff to fall” (Muller v. City of New York, 185 AD3d 834 [2d Dept 2020]; Rodriquez v. Sheridan One Co., LLC, 177 AD3d 801, 802 [2d Dept 2019]). The court finds that the defendants’ evidentiary submissions, including the deposition testimony of the plaintiff, the owner, management agent and Elevator were insufficient to eliminate all triable issues of fact as to whether they had actual or constructive notice of the allegedly malfunctioning elevator. (Green v. City of New York, 76 AD3d 508 [2d Dept 2010]). In fact, neither Building, Gabriel Management nor Elevator produced any records (e.g., inspection and service records, motor room log, incident report, repair records, etc.) demonstrating when it inspected the subject elevators. Moreover, the managing agent for Gabriel Management testified that he did not have any written records of complaints regarding the subject premises. Additionally, the defendants submitted inadmissible evidence (e.g., Worker’s Compensation Employee Claim form, Prehospital Care Summary, etc.) in support of their motion for summary judgment; and the defendants failed to explain the photograph of the mis-leveled elevator. Furthermore, “[a]n elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or ‘failure to use reasonable care to discover and correct a condition which it ought to have found’” (Rogers v. Dorchester Assoc., 32 NY2d 553, 559 [1973]; Green v. City of New York, 76 AD3d 508 [2d Dept 2010]). Here, Elevator failed to establish its prima facie entitlement to judgment as a matter of law by showing that it did not create or have actual or constructive notice of a defect causing the elevator to mis-level. In fact, Elevator failed to produce any records (e.g., inspection and service records, annual reports, proposals, motor room log. repair records, etc.) demonstrating, as a matter of law, that it used reasonable care to discover and correct a condition which it ought to have found. (Green v. City of New York, 76 AD3d 508 [2d Dept 2010]). In light of the fact that the defendants failed to demonstrate its prima facie entitlement to judgment as a matter of law, the court need not review the sufficiency of the plaintiff’s opposition papers (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Lastly, that branch of the defendants’ motion to dismiss its co-defendants’ crossclaims, which are based upon indemnification, is denied as premature. B. Branch of Defendants’ Motion to Dismiss — Pursuant to CPLR §3126 Furthermore, “[a] party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (Squillacioti v. Independent Group Home Living Program, Inc., 167 AD3d 673 [2d Dept 2018] citing Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d 543 [2015] [internal quotation marks omitted]; see also Eksarko v. Associated Supermarket, 155 AD3d 826 [2d Dept 2017]; VOOM HD Holdings LLC v. EchoStar Satellite LLC, 93 AD3d 33 [2d Dept 2012]). “Where the evidence is determined to have been intentionally or willfully destroyed, the relevancy of the destroyed documents is presumed” (Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 547; Eksarko v. Associated Supermarket, 155 AD3d at 826; UMS Solutions, Inc. v. Biosound Esaote, Inc., 145 AD3d 831, 832 [2d Dept 2016]). “On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party’s claim or defense” (Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 547-548; see Eksarko v. Associated Supermarket, 155 AD3d at 828). Moreover, the Supreme Court has broad discretion to determine a sanction for the spoliation of evidence (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 551; see also Samaroo v. Bogopa Service Corp., 106 AD3d 713 [2d Dept 2013]). Striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, in order to impose such a sanction, the court “‘will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness’” (Eksarko v. Associated Supermarket, 155 AD3d at 829, quoting Iannucci v. Rose, 8 AD3d 437 [2d Dept 2004]; see UMS Solutions, Inc. v. Biosound Esaote, Inc., 145 AD3d 831, 833 [2d Dept 2016]; Jennings v. Orange Regional Med. Ctr., 102 AD3d 654, 655 [2d Dept 2013]). By contrast, where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate (see Eksarko v. Associated Supermarket, 155 AD3d at 828; Peters v. Hernandez, 142 AD3d 980, 981 [2d Dept 2016]; Jennings v. Orange Regional Med. Ctr., 102 AD3d at 656; Tapia v. Royal Tours Serv., Inc., 67 AD3d 894, 896 [2d Dept 2009]; Iannucci v. Rose, 8 AD3d at 438). Where evidence has been found to have been negligently destroyed, adverse inference charges have been found to be appropriate (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 554; Eksarko v. Associated Supermarket, 155 AD3d at 828). In the case at bar, during the plaintiff first deposition, she was instructed not to throw the high heel shoes away for any reason. Nonetheless, during the plaintiff’s second deposition, she testified that she donated the subject high heel shoes. However, the plaintiff did provide the defendants with a photograph of similar shoes. Here, the Court finds that granting defendants’ motion, pursuant to CPLR §3126, dismissing the complaint for spoliation of evidence is too drastic a sanction. (see McDonnell v. Sandaro Realty, Inc., 165 AD3d 1090 [2d Dept 2018]). The defendants failed to demonstrate that plaintiff s conduct rose to the level of being intentional or willful (see Smith v. Cunningham, 154 AD3d 681 [2d Dept 2017]; Heins v. Public Storage, 164 AD3d 881 [2d Dept 2018]). Nevertheless, the Court finds it is undisputed that the evidence, the high heel shoes, are relevant to defendants’ ability to present their defense that the elevator did not malfunction when the plaintiff fell. Under the circumstances, where the plaintiff allegedly donated her shoes, even though instructed to preserve the same, the court believes that the appropriate remedy for spoliation of evidence is an adverse inference charge at the time trial against plaintiff with respect to her high heel shoes. (Squillacioti v. Independent Group Home Living Program, Inc., 167 AD3d 673 [2d Dept 2018]; see also Smith v. Cunningham, 164 AD3d at 683; Morales v. City of New York, 130 AD3d 792, 792 [2d Dept 2015]; McDonnell v. Sandaro Realty, Inc., 165 AD3d 1090 [2d Dept 2018]). Accordingly, it is hereby ORDERED that branch of Delta Elevator Inspection Corp.’s motion, pursuant to CPLR §3212, seeking summary judgment dismissing the verified complaint is denied; and it is further, ORDERED that branch of Berken Building Company, LLC and Gabriel Management’s cross-motion, pursuant to CPLR §3212, seeking summary judgment dismissing the verified complaint is denied; and it is further, ORDERED that branch of Delta Elevator Inspection Corp.’s motion to dismiss the complaint for spoliation of evidence is granted only to the extent of directing that an adverse inference charge be given at trial with respect to the plaintiff s missing high heel shoes; and it is further, ORDERED that branch of Delta Elevator Inspection Corp.’s motion for summary judgment in connection with its crossclaims against Berken Building Company, LLC and Gabriel Management is denied; and it is further, ORDERED that branch of Berken Building Company, LLC and Gabriel Management’s cross-motion for summary judgment in connection with its crossclaims against Delta Elevator Inspection Corp. is denied; and it is further, ORDERED that all other relief requested in the motion and cross-motion, which has not been specifically addressed above is denied; and it is further, ORDERED that Delta Elevator Inspection Corp. shall serve a copy of this decision and order with notice of entry upon all of the parties and the clerk of this court on or before July 30, 2021. The foregoing constitutes the decision and order of the court. Dated: July 8, 2021
