| Appelbaum v Sparclean Co., Inc. |
| 2008 NY Slip Op 51024(U) [19 Misc 3d 141(A)] |
| Decided on May 22, 2008 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiffs appeal, as limited by their briefs, from that portion of an order of the Civil Court of
the City of New York, New York County (Barbara Jaffe, J.), entered December 10, 2007, which
granted defendants' motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Barbara Jaffe, J.), entered December 10, 2007, affirmed, with $10 costs.
Civil Court providently exercised its discretion in dismissing the complaint on the ground of plaintiffs' spoliation of the bathroom tiles, evidence crucial to the defense of this matter (see Kirkland v New York city Housing Authority, 236 AD2d 170 [1997]). The photographs and the report generated by plaintiffs' expert cannot adequately substitute for an inspection and testing of the tiles by defendants' own experts (see New York City Transit Auth. v Consolidated Edison of N.Y., Inc., 40 AD3d 273 [2007]; Neal v Easton Aluminum, Inc., 15 AD3d 459 [2005]). Plaintiffs' belated claim that defendants had a reasonable opportunity to inspect the tiles prior to the demolition of the bathroom in or about November 2006 is undermined by the March 1, 2007, so-ordered preliminary conference order in which plaintiffs agreed to produce the damaged tiles for physical inspection by defendant.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: May 22, 2008