Papers Submitted:

Upon the foregoing papers, the motion (Mot. Seq. 02) by the Defendant, [*2]DOLPHIN FITNESS (AMITYVILLE), D/B/A BIG AL'S FAMILY FITNESS CENTER (hereinafter "BIG AL'S), seeking an Order, pursuant to CPLR § 3212, granting it summary judgment and dismissing the Plaintiffs' complaint, and the motion (Mot. Seq. 03) by the Plaintiffs, CRES PARKINS and PAMELA CROOKS PARKINS, seeking an Order: 1) granting them summary judgment on the issue of liability, pursuant to CPLR § 3212, and setting the matter down for an inquest on the issue of damages; and 2) striking the Defendant, BIG AL'S, answer for failing to preserve surveillance video and incident report evidence; or 3) in the alternative, directing that a hearing be conducted to determine when and how the evidence was lost or destroyed, and imposing sanctions upon the Defendant, BIG AL'S, is determined as hereinafter provided.

This action was commenced by the Plaintiffs by filing a Summons and Complaint in the Office of the Nassau County Clerk on October 22, 2013. (See Copy of the Summons and Complaint annexed to the Plaintiffs' Notice of Motion as Exhibit "A"). Issue was joined by the service of the Defendant, BIG ALS', Verified Answer on November 26, 2013. (See Copy of Answer annexed to the Plaintiffs' Notice of Motion as Exhibit "B"). Thereafter, the Plaintiffs moved for a default judgment against the Defendant, JAHLIL ALLEN (hereinafter "ALLEN"). This Court granted a default judgment as against the Defendant, ALLEN, and Ordered that the issue of damages be addressed at the time of trial. (See Copy of the Order, dated November 18, 2014, annexed to the Defendant, BIG ALS', Notice of Motion as Exhibit "D").

This action was brought by the Plaintiff, CRES, to recover for personal injuries allegedly sustained on October 15, 2012, as a result of an assault that occurred at the Defendant, BIG ALS', fitness facility, and a derivative claim by the Plaintiff, PAMELA CROOKS PARKINS, for loss of services. The Plaintiff, CRES PARKINS (hereinafter "CRES"), alleges that he sustained serious injuries as a result of the altercation and the Defendant, BIG ALS', failure to maintain its premises in a reasonably safe condition and properly supervise the activities taking place at the fitness facility.

In support of its motion, the Defendant, BIG AL'S, offers the testimony of the Plaintiff, CRES, at his Examination Before Trial (hereinafter "EBT"), conducted on March 11, 2015. (See EBT transcript of CRES, attached to the Defendant, BIG AL'S, Notice of Motion as Exhibit "E"). The Plaintiff, CRES, testified that he became a member of the Defendant, BIG ALS', fitness facility approximately two months prior to the incident on October 15, 2012. (Id. at p. 9, l. 10-15). The Plaintiff, CRES, indicated that, when he went to the Defendant, BIG ALS', fitness facility, he would work out and play basketball. (Id. at p. 12, l. 4-5). CRES stated that a basketball game at the Defendant, BIG ALS', fitness facility was "just a pick-up game" and not a supervised activity. (Id. at p. 12, l. 6-9). No one else, other than the people playing and waiting to play, would be in the glass room where basketball games are played. (Id. at p. 9, l. 20-24).

On the date of the incident, the Plaintiff, CRES, went on the treadmill, lifted weights, and then went to the basketball court in the Defendant, BIG AL'S, fitness center [*3]with two of his friends. (Id. at p. 17, p. 18). The Plaintiff, CRES, testified that, when he arrived at the basketball court, a game was already going on. (Id. at p. 19, l. 20-23). The Plaintiff, CRES, observed the Defendant, ALLEN, playing in the basketball game. The Plaintiff, CRES, testified that he had seen the Defendant, ALLEN, at the Defendant, BIG ALS', fitness facility prior to the incident, and did not witness the Defendant, ALLEN, speaking in a loud manner or otherwise bringing attention to himself. (Id. at p. 20, l. 5-6, p. 21, l. 6-12). However, while he was watching the ongoing game, the Plaintiff, CRES, observed the Defendant, ALLEN, "trash talking" and "trying to egg on an altercation". (Id. at p. 24, l. 4-6). The Plaintiff, CRES, stated that he observed the Defendant, ALLEN, push another individual and tell that person to "come outside" with him. (Id. at p. 23, l. 17-25). The Plaintiff, CRES, testified that while he was observing the ongoing game, he also saw an employee from the Defendant, BIG ALS', fitness facility, waiting to play in the next basketball game. (Id. at p. 24, l. 11-14). The Plaintiff, CRES, indicated that the employee was wearing a "BIG AL'S" shirt with the word "staff" on it. (Id. at p. 30, l. 4-8).

Once the previous game was over, approximately 20 minutes after the Plaintiff, CRES, entered the basketball court area, the Plaintiff, CRES, joined a team of "unknowns" to challenge the winning team in a basketball game. (Id. at p. 26, l. 18-25). During the game, the Plaintiff, CRES, and the Defendant, ALLEN, guarded each other. (Id. at p. 19, l. 20-23). The Plaintiff, CRES, testified that, while playing, the Defendant, ALLEN, kept "verbally abusing" him. (Id. at p. 33, l. 24). The Plaintiff, CRES, testified that, approximately 10 minutes into the game, the Defendant, ALLEN, repeatedly punched the Plaintiff, CRES, in the face. (Id. at p. 27, l. 18, p. 35-36). The Plaintiff, CRES, stated that his two friends attempted to stop the altercation. (Id. at p. 38, l. 11-13). The individual identified by the Plaintiff, CRES, as an employee of the Defendant, BIG AL'S, fitness center, was present when the incident occurred, but did not intervene in the altercation. (Id. at p. 39). He described the employee that was present on the basketball court at the time of the incident as Caucasian, approximately 5'6" to 5'7" in height, slim, with blonde hair. (Id. at p. 24, l. 19-22). After the incident, a different employee of the Defendant, BIG AL'S, came from outside of the basketball court enclosure and brought the Plaintiff, CRES, into the locker room. (Id. at p. 39).

The Defendant, BIG AL'S, also provides the EBT transcript of Alexandria Caraballo (hereinafter "Caraballo"), an employee of the Defendant, BIG AL'S, conducted on May 13, 2015. (See EBT transcript annexed to the Plaintiffs' Notice of Motion as Exhibit "F"). Ms. Caraballo testified that she began her employment at the Defendant, BIG ALS', fitness facility in April of 2013. (Id. at p. 6, l. 22). Ms. Caraballo indicated that her employment title, since April 2014, has been "Human Resources Director". (Id. at p. 6, l. 24).

Ms. Caraballo stated that the Defendant, BIG AL'S, maintains practices and procedures to insure the safety of its patrons. (Id. at p. 24, l. 11-14). The Defendant, BIG AL'S, posts bulletins throughout the gym and requires that guests of the gym sign waivers that indicate the practices and procedures of the gym. Ms. Caraballo testified that any of the [*4]Defendant's, BIG ALS', employees can terminate a membership for fighting, rowdiness, or stealing, regardless of the rank of the employee. (Id. at p. 25, l. 2-7). Ms. Caraballo testified that it would have been a violation of the Defendant, BIG ALS', protocol if the Defendant, ALLEN, challenged someone to a fight inside of the basketball court. (Id. at p. 28, l. 3-10).

Ms. Caraballo stated that if an employee of the Defendant, BIG AL'S, was present when the Defendant, ALLEN, acted aggressively, it would be the obligation of the employee to revoke his membership and ask him to leave. Ms. Caraballo stated that this obligation would exist even if the employee was not on duty. (Id. at p. 28, l. 11-25). Ms. Caraballo noted that the Defendant, ALLEN's, membership was terminated the same day of the incident. (Id. at p. 29, l. 24-25). A review of the Defendant, ALLEN's, membership records did not reveal any incidents prior to the alleged assault that occurred on October 15, 2012. (Id. at p. 35, l. 8-12).

The Defendant, BIG AL'S, now moves (Mot. Seq. 02) for summary judgment on the grounds that it cannot be liable for the spontaneous and unforeseeable criminal acts of the Defendant, ALLEN. The Defendant, BIG AL'S, argues that there is no record of prior misconduct or violence by the Defendant, ALLEN, that would warrant termination of membership or expulsion of the Defendant, ALLEN, prior to the subject incident. Therefore, the Defendant, BIG AL'S, could not have foreseen or prevented the assault of the Plaintiff, CRES, by the Defendant, ALLEN.

The Plaintiffs move (Mot. Seq. 03) for summary judgment, on the grounds that the Defendant, BIG AL'S, is liable for its failure to keep its premises in a reasonably safe condition. The Plaintiffs argue that the Defendant, BIG AL'S, had ample notice of the Defendant, ALLEN's, intent to commit acts of violence and failed to take action in preventing the assault against the Plaintiff, CRES. Further, in Opposition to the Defendant, BIG ALS', motion (Mot. Seq. 02) for summary judgment, the Plaintiffs' counsel argues that the Defendant, BIG AL'S, failed to produce a witness with knowledge of relevant events related to the incident. Therefore, the Defendant, BIG AL'S, should be precluded from proffering testimony of its employee, Alexandria Caraballo.

The Defendant, BIG AL'S, asserts that it should not be precluded from providing testimony of its witness, Alexandria Caraballo. The Defendant, BIG AL'S, contends that it provided the Plaintiffs with the full name and last known address of Kevin Muller, a former manager of the Defendant, BIG AL'S, who was present at the time the incident occurred. Moreover, the Plaintiff, CRES, identified two friends that were present, with the Plaintiff, CRES, when the incident occurred. The Defendant, BIG AL'S, contends that the Plaintiffs did not notice any non-party depositions of the two friends who witnessed the assault or Kevin Muller, a manager formerly employed by the Defendant, BIG AL'S, and who was working at the time of the incident.

The Court agrees with the Defendant, BIG AL'S, that it does not have a duty to produce witnesses over which it has no control. The Plaintiffs have set forth no evidence showing that they attempted to obtain testimony from the Defendant, BIG ALS', former employee, Kevin Muller, or the two friends identified by the Plaintiff, CRES, as witnesses [*5]to the incident. Therefore, this Court finds no reason to preclude the testimony of the Defendant, BIG ALS', witness, Alexandria Caraballo.

Summary judgment is the procedural equivalent of a trial (S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974]). The function of the court in deciding a motion for summary judgment is to determine if triable issues of fact exist (Matter of Suffolk County Dept. of Social Servs. v. James M., 83 NY2d 178, 182 [1994]). The proponent must make a prima facie showing of entitlement to judgment as a matter of law (Giuffrida v. Citibank Corp., 100 NY2d 72, 82 [2003]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once a prima facie case has been made, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact or an acceptable excuse for its failure to do so. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]) The evidence must be viewed in the light most favorable to the non-moving party (Branham v. Loews Orpheum Cinemas, Inc.,8 NY3d 931 [2007]; Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 315 [2004]). It is not the court's function on a motion for summary judgment to assess credibility. (Ferrante v. American Lung Assn., 90 NY2d 623, 631 [1997]; Cerniglia v. Loza Rest. Corp., 98 AD3d 933 [2nd Dept. 2012]).

Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property. (Kranenberg v. TKRS Pub, Inc., 99 AD3d 767, 768 [2nd Dept. 2012] citing D'Amico v. Christie, 71 NY2d 76, 85 [1987]; Afanador v. Coney Bath, LLC,91 AD3d 683 [2nd Dept. 2012]; Giambruno v. Crazy Donkey Bar & Grill, 65 AD3d 1190, 1192 [2nd Dept. 2009]; Millan v. AMF Bowling Ctrs., Inc., 38 AD3d 860, 860-861 [2nd Dept. 2007]); see Petras v. Saci, Inc., 18 AD3d 848 [2nd Dept. 2005]; Cutrone v. Monarch Holding Corp.,299 AD2d 388, 389 [2nd Dept. 2002]). However, "an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control.

Further, a possessor of real property may be cast in liability for injuries to another person on the property caused by the criminal activity of a third party if the possessor knew or should have known from past experience that there was a likelihood of criminal conduct which would endanger the safety of such person (Nallan v. Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980]). Lacking such notice, there is no duty on the part of the landowner to provide protective measures, as foreseeability of harm is the measure of a landowner's duty of care. (see Basso v. Miller, 40 NY2d 233, 241 [1976]; see generally Miller v. State of New York, 62 NY2d 506 [1984], on remand to 110 NY2d 627 [1985]). Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults. (supra).

In the instant matter, the Defendant, BIG AL'S, failed to establish that the assault on the Plaintiff, CRES, was unforeseeable and unexpected. The Defendant, BIG AL'S, relies on the EBT testimony of the Plaintiff, CRES, who testified that, prior to the subject incident, he observed the Defendant, ALLEN, acting in an aggressive manner towards another patron at the Defendant, BIG ALS', fitness facility. The Plaintiff, CRES, [*6]testified that the Defendant, ALLEN, pushed the other patron and asked him to go outside, presumably to fight. The Plaintiff, CRES, testified that an employee of the Defendant, BIG AL'S, was also present in the basketball court while the Defendant, ALLEN, was verbally and physically aggressive towards the other patron. Further, the Defendant, BIG ALS', employee, Ms. Caraballo, testified that all employees of the Defendant, BIG AL'S, have the authority to revoke a membership and ask a gym member to leave if that individual acts aggressively while at the Defendant, BIG ALS', fitness facility. Ms. Caraballo stated that challenging someone to a fight violates the Defendant, BIG ALS', policies. The EBT testimony of both the Plaintiff, CRES, and the Defendant, BIG ALS', employee, Ms. Caraballo, create an issue of fact as to whether the Defendant, BIG AL'S, was on notice of the Defendant, ALLEN's, violent and aggressive behavior towards members of the fitness facility and whether the Defendant, BIG AL's, had the opportunity to control such behavior prior to the subject assault.

The Court will now address that branch of the Plaintiffs' motion seeking an Order striking the Defendant, BIG AL'S, answer, pursuant to CPLR § 3126 and the common-law doctrine of spoilation, on the grounds that the Defendant, BIG AL'S, failed to preserve critical evidence in this matter.

On October 21, 2014, the Plaintiffs served Discovery Demands on the Defendant, BIG AL'S. (See a copy of the Discovery Demands annexed to the Plaintiffs' Notice of Motion as Exhibit "I"). Such demands specifically requested production of all photographs, films, videotapes, and/or computer disks containing depictions of the incident. (Id. at p. 2). The Plaintiffs also requested production of any report(s) relating to the incident at issue, made in the ordinary course business. (Id. at p. 2). On May 14, 2014, the Defendant, BIG AL'S, responded that it was not in possession of any accident/incident/occurrence reports related to the subject incident and that the Defendant, BIG AL'S, was conducting a search for the same. (See Responses to Preliminary Conference Order annexed to the Plaintiffs' Notice of Motion as Exhibit "J").

At her EBT, Ms. Caraballo testified that an incident report was prepared in connection with the subject assault, however, she had never seen the incident report. (See EBT transcript annexed to the Plaintiffs' Notice of Motion as Exhibit "F" at p. 9, l. 19-22). Ms. Caraballo stated that the incident report was archived in the paper files that the Defendant, BIG AL'S, keeps in one of the closets at the fitness center. (Id. at p. 10, l. 2-8). Prior to her EBT, Ms. Caraballo searched for the incident report relating to the assault for approximately one week, but could not find the report. (Id. at p. 10, l. 14-18). Ms. Caraballo anticipated that it would take another two to three days of searching to locate the incident report. (Id. at p. 11, l. 3). Ms. Caraballo testified that, as part of her job duties, she files the incident reports. However, typically the individual who filled out the report follows up with the person involved in the specific incident. (Id. at p. 11, l. 18-22).

Ms. Caraballo also testified that there are video cameras in the Defendant, BIG ALS', fitness facility. (Id. at p. 14, l. 21-23). Ms. Caraballo testified that one of the video [*7]cameras captures half of the basketball court. (Id. at p. 15, l. 5-8). Ms. Caraballo stated that the Defendant, BIG ALS', fitness facility has two video monitors where the recordings of each video camera are fed to, one in the back office and another in a closet, that is locked. (Id. at p. 15, l. 13-21). Ms. Caraballo testified that no one employed at the Defendant, BIG AL's, fitness center has the responsibility of reviewing the video stream on a daily basis. (Id. at p. 19, l. 3). Ms. Caraballo stated that she had no knowledge regarding the Defendant, BIG ALS', practice and procedure for storing video streams. (Id. at p. 19, l. 15-25). Ms. Caraballo testified that the cameras are on a "loop" and that there is approximately seven days worth of recording before any saved footage is recorded over. (Id. at p. 37, l. 4-9). Ms. Caraballo testified that, if a recording of the subject incident exists, she has no knowledge of where the recording is. (Id. at p. 37, l. 15-20).

In support of their motion, the Plaintiffs also submit the EBT testimony of the Plaintiff, PAMELA CROOKS PARKINS. (See EBT transcript annexed to the Plaintiffs' Notice of Motion as Exhibit "E"). At her EBT, the Plaintiff, PAMELA CROOKS PARKINS, testified that Sergeant Scott, from the Amityville Police Department, came to the hospital to interview the Plaintiff, CRES. The Plaintiff, PAMELA CROOKS PARKINS, testified that Sergeant Scott informed her that he had watched a videotape of the incident prior to going to the hospital. (Id. at p. 17, l. 6-25).

With respect to the incident report, on May 18, 2015, the Plaintiffs served additional Discovery Demands on the Defendant, BIG AL'S, and specifically requested the incident report "described in the deposition testimony of Alexandria Caraballo." (See Copy of discovery demands annexed to the Plaintiffs' Notice of Motion as Exhibit "K"). On June 22, 2015, the Defendant, BIG AL'S, responded that it was not in possession of any accident/incident/occurrence reports relating to the subject incident.

With respect to the videotape, on May 2, 2015, the parties entered into a stipulation wherein it was agreed that "either party may apply to the Court for a so ordered' subpoena to the Amityville Police Department or the Suffolk County D.A. for the production of the videotape. (See a copy of the stipulation annexed to the Plaintiffs' Notice of Motion as "Exhibit G"). Thereafter, the Plaintiffs' counsel submitted a subpoena, addressed to the Amityville Police Department, which sought production of the videotape of the incident. The Amityville Police Department responded to the Plaintiffs' subpoena by correspondence, dated May 27, 2015, which indicated that it was not in possession of any video recording or paperwork pertaining to a video recording involving the Defendant, ALLEN, and regarding an assault at the Defendant's, BIG AL'S, fitness facility on or about October 15, 2012. (See correspondence annexed to the Plaintiffs' Notice of Motion as Exhibit "H").

The Plaintiffs' counsel contends that it is undisputed that a videotape and incident report existed and was within the Defendant, BIG AL'S, control after the subject assault occurred. The Plaintiffs' counsel argues that the Defendant, BIG AL'S, failed to preserve evidence that is crucial in establishing the Plaintiffs' claims.

In opposition to the Plaintiffs' motion, the Defendant, BIG AL's, argues that [*8]the sanctions requested by the Plaintiffs, including striking the answer or a negative inference charge to the jury, should not be granted because the Plaintiffs have failed to show that the Defendant, BIG AL'S, deliberately or negligently discarded critical evidence without which the Plaintiff cannot prove a case. The Defendant, BIG AL'S, argues that the Plaintiffs did not explore multiple avenues to prove their case and failed to show that there is no other way to prove their case without the videotape and incident report. Further, the Defendant's, BIG ALS', counsel argues that the Plaintiffs never requested that the Defendant, BIG AL'S, preserve the videotape or incident report prior to litigation. Lastly, the Defendant, BIG ALS', counsel argues that, based on the testimony of the Plaintiff, PAMELA CROOKS PARKINS, the Amityville Police Department was in possession of the videotape after the incident occurred. Counsel for the Defendant, BIG AL'S, argues that the Defendant, BIG AL'S, made the tape available to the police. Therefore, the Defendant, BIG AL'S, cannot be said to have intentionally concealed or destroyed the videotape. The Defendant, BIG AL'S, contends that under these circumstances, any failure to preserve the videotape or incident report, by no means, rises to the level of deliberate or negligent conduct that would warrant sanctions.

In reply, the Plaintiffs' counsel argues that the videotape is crucial to the Plaintiffs' case, as it would show the events leading up to the assault and that an employee of the Defendant, BIG AL'S, was present prior to and during the assault and failed to intervene. Further, the Plaintiffs' counsel contends that the Defendant, BIG AL'S, had a duty to preserve the videotape and incident report, regardless of whether or not the Plaintiff requested such preservation. The Plaintiff, CRES, sustained significant injuries as a result of the assault and the Defendant, ALLEN, was immediately arrested after the incident. As such, the Defendant, BIG AL'S, was on notice that the assault would give rise to subsequent litigation.

In this case, the Plaintiffs have failed to make a prima facie showing that sanctions should be imposed upon the Defendant, BIG AL'S, based on spoliation of evidence. "Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the nonresponsible party of the ability to prove its claim, the responsible party may be sanctioned by the striking of its pleading" (Gotto v. Eusebe-Carter, 69 AD3d 566, 567 [2d Dept. 2010]). That is, where a party negligently or intentionally destroys essential physical evidence "such that its opponents are prejudicially bereft of appropriate means to confront a claim with incisive evidence, the spoliator may be sanctioned by the striking of its pleading" (New York Cent. Mut. Fire Ins. Co. v. Turnerson's Elec., 280 AD2d 652, 653 [2d Dept. 2001]). Even in situations where "the evidence was destroyed before the spoliator became a party, [a sanction may be justified] provided [the offender] was on notice that the evidence might be needed for future litigation" (DiDomenico v. C & S Aeromatik Supplies, Inc., 252 AD2d 41, 53 [2d Dept. 1998]; see also, Std. Fire Ins. Co. v. Fed. Pac. Elec. Co., 14 AD3d 213, 220 [1st Dept. 2004]).

However, "[w]here a party did not discard crucial evidence in an effort to frustrate discovery, and cannot be presumed to be responsible for the disappearance of such [*9]evidence, spoliation sanctions are inappropriate" (Cordero v. Mirecle Cab Corp., 51 AD3d 707, 709 [2d Dept. 2008]; see O'Reilly v. Yavorskiy, 300 AD2d 456, 457 [2d Dept. 2002]). Similarly, where the evidence lost is not central to the case, or its destruction is not prejudicial, a sanction may not be appropriate (Klein v. Ford Motor Co., 303 AD2d 376 [2d Dept. 2003]; Mylonas v. Town of Brookhaven, 305 AD2d 561, 563 [2d Dept. 2003]).

"The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to defend [the] action" (Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 AD3d 717, 718 [2d Dept. 2009]). "Generally, striking a pleading is reserved for instances of willful or contumacious conduct" (Dean v. Usine Campagna, 44 AD3d 603, 605 [2d Dept. 2007]). When a party neglectfully disposes of evidence, the Court must consider the prejudice which results from the spoliation in determining what type of sanction if any is warranted as a matter of fundamental fairness (Dean v. Campagna, supra; Scarano v. Bribitzer, 56 AD3d 750 [2d Dept. 2008]).

Ultimately, the determination of whether to impose sanctions for spoliation of evidence is a matter within the broad discretion of the court (Denoyelles v. Gallagher, 40 AD3d 1027 [2d Dept. 2007]).

There is nothing on this record to establish that the Defendant, BIG AL'S, intentionally destroyed the subject videotape or incident report. Based on the EBT testimony of the Plaintiff, PAMELA CROOKS PARKINS, Sergeant Scott represented that the Amityville Police Department was in possession of the videotape of the incident. Further, the EBT tesimony of Ms. Caraballo did not establish that the Defendant, BIG AL'S, had a standard procedure for saving video surveillance footage. Ms. Caraballo also testified that she had searched for the incident report, but could not locate it. Moreover, the Plaintiffs have not given any explanation as to why they will be prejudicially bereft of making out their case without the lost or misplaced incident report.

Based upon this record and the well settled law of spoliation, this Court is persuaded that the Defendant, BIG AL'S, conduct was not willful or contumacious (Denoyelles v. Gallagher, supra; Koehler v. Midtown Athletic Club LLP., 55 AD3d 1444 [4th Dept. 2008]).

Lastly, the Defendant, BIG AL'S, contends that there is no basis in law or fact to substantiate the Plaintiffs' claim for punitive damages, as the Defendant, BIG AL'S, was not reckless or wanton in permitting the Defendant, ALLEN, membership to the fitness facility. In its Affirmation in Reply, the Plaintiffs concede that there is no basis for punitive damages against the Defendant, BIG AL'S. Therefore, any issue with respect to the Plaintiffs' claim for punitive damages moot and the claim for punitive damages is dismissed.

Accordingly, it is hereby

ORDERED, that the Defendant, BIG AL'S, motion seeking summary judgment, pursuant to CPLR § 3212, on the issue of liability is DENIED; and it is further

ORDERED, that the branch of the Plaintiffs' motion seeking summary [*10]judgment, pursuant to CPLR § 3212, on the issue of liability is DENIED; and it is further

ORDERED, that the branch of the Plaintiffs' motion seeking an order pursuant to CPLR § 3126 and the common-law doctrine of spoilation, striking the Defendant, BIG ALS', Verified Answer is DENIED; and it is further

ORDERED, that the branch of the Plaintiffs' motion seeking an order pursuant to CPLR § 3126 and the common-law doctrine of spoilation imposing sanctions upon the Defendant, BIG AL'S, is DENIED.

This decision constitutes the decision and order of the court.