Dzidowska v. Related Cos., L.P. , 148 A.D.3d 480 ( 2017 )

Dzidowska v Related Cos., L.P. (2017 NY Slip Op 01810)

Dzidowska v Related Cos., L.P.

2017 NY Slip Op 01810

Decided on March 15, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 15, 2017
Friedman, J.P., Andrias, Gische, Webber, JJ.

3378 452293/14

[*1]Barbara Dzidowska, Plaintiff-Respondent,

v

The Related Companies, L.P., et al., Defendants-Appellants, Fujitec America, Inc., doing business as Fujitec Serge of New York, Defendant-Respondent.

London Fischer LLP, New York (Brian P. McLaughlin of counsel), for appellants.

The Platta Law Firm, PLLC, New York (Brian J. Vannella of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 11, 2016, which to the extent appealed from, granted plaintiff's motion for spoliation sanctions against defendants-appellants, denied defendants-appellants' cross motion to sanction plaintiff's counsel and for summary judgment dismissing the complaint and all cross claims as against the Related Companies, L.P. (Related) and 1616 First Company, LLC (First), unanimously affirmed, with costs.

The court properly concluded that appellants failed to demonstrate that plaintiff's counsel violated the Rules of Professional Conduct, CPLR 3101 and 3120 or 22 NYCRR § 130-1.1(c), warranting sanctions, based on alleged conduct of an investigator.

However, the court properly sanctioned appellants for spoliation of certain videotapes, which they were notified by plaintiff's counsel to preserve, within days of the accident. Despite this notice, appellants preserved copies of only limited portions of the surveillance tape from one camera and destroyed the footage for the entire relevant period from another camera located in the elevator. Plaintiff showed that the portions of the tape that were recorded over were relevant to whether defendants had notice of elevator malfunctions prior to her accident. The court properly concluded that defendants' culpable state of mind was evidenced by their failure to comply with plaintiff's request to preserve this evidence (see VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [1st Dept 2012]).

Related and First failed to establish that they did not own, manage or maintain the building. Their reliance largely on

unidentified documents not before the court is insufficient to meet their burden on summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 15, 2017

CLERK