Plaintiff, JEFFREY GESSER, Executor of the Estate of MONA GESSER, moves for an order, pursuant to CPLR §3126, striking defendant's answer or, in the alternative, precluding defendant from offering evidence at the time of trial with regard to the safety or soundness of the subject rug based upon spoliation of evidence, and instructing the jury with an adverse inference charge. Defendant, NORTH SHORE TOWERS APARTMENTS INCORPORATED (hereinafter referred to as "NORTH SHORE"), opposes the motion, which is determined as follows:

This litigation arises from an accident on January 19, 2005, when it is alleged that plaintiff was walking through the lobby of NORTH SHORE, where she resided, when she slipped and fell on what is described as a "defective and dangerous" rug. Counsel for plaintiff relates that plaintiff decedent sustained an intertrochanteric fracture of the right femur with posterior displacement, and underwent open reduction surgery with internal fixation at North Shore University Hospital (NSUH), where she did well in the immediate pos-operative period and was discharged to Grace Plaza Rehabilitation Facility (hereinafter referred to as "GRACE"), on January 24, 2005. Thereafter, plaintiff decedent remained at GRACE until February 15, 2005, at which time she was transferred back to NSUH for weight loss and failure to thrive and, after being treated for kidney failure, she was discharged to her home where, after several weeks, she died on March 29, 2005. It appears that, on March 10, 2005, counsel for plaintiff put Genatt Associates, Inc., NORTH SHORE's insurer, on notice of its intention to make a claim, and the action was commenced on October 1, 2005, with the filing of the summons and verified complaint, which was served on November 9, 2005. [*2]

On March 22, 2005, plaintiff's expert, Robert L. Schwartzberg, P.E., visited the accident site for the purpose of "examining the floor and area rug, establishing orientation and taking measurements". His report, dated March 24, 2005, relates that he examined the lobby floor in the subject location, which is of finished marble, with a seating area around an area rug of approximately 12 feet by 14 feet in length. He states that at each corner of the area rug there is a chair, which has been placed in such a way that the chair is over the corner of the area rug. He notes that the chairs are not placed on top of the rug to maintain the rug in place, but rather the corners of the area rug lie under the individual chairs and between the legs of the individual chairs. He observes that the area rug did not have a backing, nor was it placed atop a liner or other device which would secure and maintain the area rug in place and prevent it from bunching up or otherwise being lifted or displaced. He notes that when he pushed his foot against the rug, his foot easily caused the area rug to buckle, to lift and his foot slid underneath. The report indicates the applicable statutes and codes and concludes that there was negligence on the part of the building owners, the building management and those responsible for maintenance and safety within the building, and that the failure to secure the rug to the floor or otherwise render it immovable was the direct cause of the accident.

On the instant motion, plaintiff states, for the first time and some two (2) years after the visit, that the expert was not permitted to photograph the subject area and that plaintiff will be prejudiced in presenting the case because the actual rug, which remained on the floor until the lobby was redecorated in October 2005, has been disposed of by NORTH SHORE, intentionally to frustrate plaintiff's ability to prove its case. It is plaintiff's position that NORTH SHORE has engaged in spoliation and destruction of evidence which precludes plaintiff from proving liability at trial as to whether the area rug was worn, torn, frayed or otherwise damaged; whether it was properly secured to the floor; whether it bunched up or slid when walked on; and whether it contained proper padding on its underside. Plaintiff urges that striking defendant's answer and/or precluding testimony as to the safety or soundness of the rug is the proper remedy for NORTH SHORE's willful destruction of evidence, which should not be condoned.

In opposition to the motion, counsel for NORTH SHORE states that the motion is without merit, and lacks good faith as well, in that the theory in plaintiff's bill of particular was that the rug was not properly secured to the floor, with no mention of whether it was worn, frayed or otherwise damaged. Counsel for NORTH SHORE states that, at no time did plaintiff request to go to the accident scene and take photographs and now, after the close of discovery, it claims it will be severely prejudiced because it cannot take photographs of the subject rug. Counsel for NORTH SHORE points out that present photographs of the subject rug would not depict the condition of the rug on the date that plaintiff fell, January 19, 2005, and moreover, defendant has provided photographs of the plaintiff sitting in a chair next to the subject rug, taken on the day of the accident, provided by defendant in its discovery response of December 6, 2006. Moreover, counsel for NORTH SHORE argues that the rug was discarded when the lobby of the building was redecorated, pursuant to its usual business practices, citing Conderman v Rochester Gas & Electric, 262 AD2d 1068, 693 NYS2d 787 (4th Dept. [*3]1999), and that no specific claim was alleged in the bill of particulars that the rug itself was defective or damaged, but rather the claim was that it was not securely fastened to the floor. Counsel states that plaintiff made no request for further examination of the rug after its engineer came to the accident location and performed an examination. Counsel for NORTH SHORE asserts that plaintiff's expert has examined the rug and the accident area and has been provided with photographs taken on the day of the accident and has failed to demonstrate that plaintiff has been prejudiced or that NORTH SHORE acted wilfully and contumaciously and thus, the motion should be denied in its entirety.

Sanctions for the spoliation of evidence are within the broad discretion of the courts. Iannucci v Rose, 8 AD3d 437, 778 NYS2d 525 (2nd Dept. 2004). The Court "may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided [the party] . . . was on notice that the evidence might be needed for future litigation'". Iannucci v Rose, supra , quoting DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 682 NYS2d 452 (2nd Dept. 1998), and citing Favish v Tepler, 294 AD2d 396, 741 NYS2d 910 (2nd Dept. 2002) and Baglio v St. John's Queens Hosp, 303 AD2d 341, 755 NYS2d 427 (2nd Dept. 2003). Nevertheless, "[r]ecognizing that striking a pleading is a drastic sanction to impose in the absence of wilful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness." Iannucci v Rose, supra , citing Favish v Tepler, supra . Where the moving party is not deprived of their ability to establish their claim or defense, a sanction less severe than striking a pleading is appropriate. Iannucci v Rose, supra , citing Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621, 728 NYS2d 767 (2nd Dept. 2001) and Klein v Ford Motor Co., 303 AD2d 376, 756 NYS2d 271 (2nd Dept. 2003).

After a careful reading of the submissions herein, the plaintiff's application to strike the defendant's pleading based upon the disposal of the rug is denied. The plaintiff's expert came to the subject location and conducted a thorough examination of the site, the floor, the rug and its installation, and defendant provided plaintiff with photographs of plaintiff sitting near the subject rug, taken on the date of the accident. Thus, "[t]he plaintiff] failed to demonstrate that the defendant intentionally attempted to hide or destroy evidence or that they negligently disposed of any key physical evidence after being placed on notice that it might be needed for future litigation.'" Goll v American Broadcasting Companies, Inc., 10 AD3d 672, 783 NYS2d 599 (2nd Dept. 2004) citing Popfinger v Terminix Intl. Co. Ltd. Partnership, 251 AD2d 564, 674 NYS2d 769 (2nd Dept. 1998) and Andretta v Lenahan, 303 AD2d 527, 756 NYS2d 454 (2nd Dept. 2003). It is the judgment of the Court that plaintiff will not be deprived of its ability to present or prove its case at trial in that plaintiff's expert inspected the subject rug and its installation prior to the rug's disposal. See, Friel v Papa, 36 AD3d 754, 829 NYS2d 569 (2nd Dept. 2007). Thus, this is not a case in which the defendant reaped an unfair advantage in the litigation as a result of its conduct. See, Lawson v Aspen Ford, Inc., 15 AD3d 628, 791 NYS2d 119 (2nd Dept. 2005) quoting Ifraimov v Phoenix Indus. Gas, 4 AD3d 332, 772 NYS2d 78 (2nd Dept. 2004); see also, De Los Santos v Polanco, 21 AD3d 397, 799 NYS2d 776 (2nd Dept. 2005). Based on the foregoing, it is hereby [*4]

ORDERED, that plaintiff's motion to strike defendant's answer or, in the alternative, to preclude defendant from offering evidence at the time of trial with regard to the safety or soundness of the subject rug based upon spoliation of evidence, and to instruct the jury with an adverse inference charge, is denied.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: May 7, 2007

_________________________

WILLIAM R. LaMARCA, J.S.C.

TO:

gesser-northshoreapartment,#

01/cplr