Andrikopolous v St. Peter's Health Partners, Inc.

Supreme Court, Albany County

Decided on March 20, 2026

Index No. 903817-20

David A. Weinstein, J.

The action now before me was brought by plaintiff Sonia Andrikopolous against defendant St. Peter's Health Partners ("St. Peter's" or the "Hospital"), seeking to recover damages for personal injuries she is alleged to have suffered on August 9, 2018. According to her complaint, on that date plaintiff visited her sister at St. Peter's, and when she was attempting to drive out of defendant's parking garage next to the Hospital, she was physically assaulted by defendant's then employees, Mr. C. Respress and Ms. M. Respress (Complaint ¶¶ 1-6).

The Complaint presents four causes of action. In the first and fourth causes of action, the complaint alleges that defendant negligently hired and/or retained the assailants despite their allegedly known violent propensities, and thus defendant failed to protect plaintiff from its employees' reasonably foreseeable acts of violence (id. ¶¶ 1-11, 23-30). In plaintiff's second and third causes of action, she alleges that defendant was negligent in failing to provide adequate security for its parking garage, and thereby breached its implied warranty of habitability under [*2]section 235-b of the Real Property Law^FN1 (Complaint ¶¶ 12-22).

I. St. Peter's Motion for Summary Judgment

Defendant's Motion Papers

Discovery is complete and defendant now moves for summary judgment to dismiss the complaint in its entirety (Broad Aff ¶ 3). There is no factual dispute concerning what occurred during the physical assault of plaintiff on August 9, 2018 in defendant's multi-level parking garage, as this incident was recorded by two surveillance cameras located at the garage's exit area. Although the recorded videos (Broad Aff, Exs M-N) do not include audio, they depict the following events^FN2:

The garage exit area consisted of two lanes that were divided by a booth in which a parking attendant was stationed to assist with payments made by cash or credit card from the right lane, or via credit card machine in the left lane. Plaintiff, unfortunately, pulled into the left lane, although she only had cash. To address the problem, the attendant exited his booth, crossed in front of plaintiff's car and approached her driver-side window, at which time plaintiff leaned out of the driver-side window and appears to say something to the car behind her. The attendant then bent down and took the cash payment from plaintiff, at which time the gate blocking plaintiff's exit lifted to permit plaintiff's exit from the garage.

An individual who was apparently Mr. Respress was driving the vehicle directly behind plaintiff, with Ms. Respress sitting next to him. As the attendant was taking plaintiff's payment, Ms. Respress exited her vehicle and began to walk toward the passenger side of plaintiff's car. The attendant began to walk back to his booth by crossing in-front of plaintiff's car, while Ms. Respress passed him and approached the driver side window of plaintiff's car and began talking to her through the open window. The attendant returned to his booth and turned to see Ms. Respress exchanging words with plaintiff. The attendant then turned fully into the booth as plaintiff and Ms. Respress were conversing. Ms. Respress then placed her hand inside plaintiff's vehicle and seems to strike plaintiff's face.^FN3

At this point, Mr. Respress exited his vehicle and began walking toward plaintiff's car. While the attendant appears to have been making change, Mr. Respress stood next to Ms. Respress, reached into the drive-side window, and struck plaintiff in the head as well. Within two seconds of being hit by Mr. Respress, plaintiff reached out of her vehicle and appears to hit Ms. Respress on her chin. During this brief moment, the attendant did not lift his head.

After striking plaintiff, Mr. Respress began to walk back towards his car, but after plaintiff struck Ms. Respress he attempted to return but was stopped by Ms. Respress, and they began to struggle with each other. At the same time, the attendant finished making change and left the booth to walk back around plaintiff's car and saw the Respresses struggling with each other. Mr. Respress then walked Ms. Respress back to their vehicle and directed her to sit in the passenger seat. He returned to plaintiff's driver-side window, while the attendant, who had been giving plaintiff her change, saw Mr. Respress and stepped back. Mr. Respress then reached through the driver-side window and hit plaintiff in the head.

Ms. Respress attempted to approach plaintiff's car again, but Mr. Respress held her as she struggled to reach plaintiff's car door. A bystander who had pulled into the right lane exited his vehicle to intervene with the struggling Respresses and managed to direct them back into their vehicle. Plaintiff then pulled out of the garage and left.

The time that elapsed from the moment plaintiff pulled up to the exit gate to the last time she was struck by Mr. Respress was 65 seconds. The entire incident, up to the point when plaintiff began pulling out of the garage, lasted just one minute 40 seconds. The period from the first blow to the last was 38 seconds.

In addition to the two surveillance videos, defendant submitted the transcript from plaintiff's deposition, in which she gave the following account of the incident in the garage: After plaintiff mistakenly pulled into the credit-card only lane, she heard obscenities and screaming coming from the car behind her, demanding that plaintiff move her vehicle and telling her to "get the fuck out of the way" (Pl Tr 109-110). She later learned that the two people in that vehicle were Mr. Respress and his daughter, who were both employed by defendant (id. at 110, 122).

Sometime after she left the garage that day, plaintiff filed a report with the police (id. at 120-121), a copy of which was submitted with plaintiff's opposition to defendant's motion (Attorney Affirmation of Ida Rose Nininger, Esq., dated August 11, 2025 ["Nininger Aff"] Ex X). According to the police report, plaintiff stated that:

"[W]hile she was attempting to pay for her parking, [Suspect No. 1] and [Suspect No. 2] became agitated and did approach [Victim] while she was sitting in her vehicle and did punch [Victim] in the head at least three times. Said action of [Suspect No. 1] and [Suspect No. 2] did cause [Victim] pain and swelling on the left side of her head and a small slight scratch to the side of her neck." (id. at Ex X).

The report also indicates that plaintiff informed the police that St. Peter's Security Officer Brent Coye told her that the Hospital was in possession of surveillance footage of the incident.^FN4[*3] Coye was not interviewed during the police investigation (Nininger Aff, Ex X).

In regard to plaintiff's claims that St. Peter's negligently hired or retained the assailants, defendant argues that they are unfounded since the criminal background investigation undertaken by the Hospital prior to their being hired did not indicate that either had any propensity to verbally or physically assault another person (Memorandum of Law, dated June 27, 2025 ["Def MOL] 3). St. Peter's further asserts that its background check and the security provided in its garage were sufficient to protect staff, patients and the public (id. at 3-6). According to defendant, there is no evidence that the Hospital knew or should have know that there was a likelihood that a member of the public would be assaulted in the garage, and thus no basis to the claim that the security it provided there was negligent (id. at 7). The Hospital further contends that the security measures in the garage were more than reasonable under the circumstances (id.). According to defendant, since the incident took place in broad daylight and two different security cameras captured the assault at the controlled exit of the garage, the only question for the Court is the adequacy of the security personnel responsible for the parking garage, which it contends was sufficient given that there was no specific assault risk for members of the public that utilized the Hospital's parking garage (id. at 7).

In further support of its motion, defendant submitted a Statement of Material Facts ("Statement"), supported by the exhibits annexed to Attorney Broad's Affirmation. According to the Statement and as set forth in the appended materials, the Hospital hired Mr. Respress on April 12, 2010 for the position of "environmental aide" (Statement ¶ 1; Broad Aff, Ex F [Defendant's HR Personnel File for Charles Respress] at 10^FN5). Before he commenced work, defendant obtained a criminal background check on Mr. Respress from Sterling Testing Systems (Broad Aff, Ex F at 116- 120), which was limited to the State of New York, which defendant identifies as Mr. Respress's known place of residence since 1999 (Statement ¶ 3). The check revealed that Mr. Respress had been convicted twice. The first, on July 29, 2005 was on a guilty plea in Albany County for "3RD Degree - Trademark Counterfeiting," a misdemeanor (Broad Aff, Ex F at 117). At the time, Respress was also charged with violating section 363 of the City of Albany Code for vending merchandise without a license, but this charge was dismissed upon his plea (id.). The second conviction occurred on April 30, 2006. when Mr. Respress again pled guilty to "3RD Degree - Trademark Counterfeiting" (id.). According to the background check, Mr. Respress was sentenced to pay a monetary fine on both convictions — $100 for the 2005 conviction and $90 for the 2006 conviction. However, there is also a handwritten note on the background check that reads "Selling t-shirts w/o license[,] giants stadium[,] probation 3yrs - off in 18 mo" (id.).

Defendant contends, without any support other than the handwritten note itself, that this [*4]information came from Mr. Respress (Statement ¶ 6). However, the criminal background check does not indicate that Mr. Respress received any sentence of probation for his Albany County misdemeanor convictions, nor is there any information in the background check evidencing that the Albany County convictions arose from Mr. Respress selling t-shirts at Giants Stadium, which is located in New Jersey (Broad Aff, Ex F at 117).

The 2010 background check procured by defendant — which was limited to New York — did not reveal that Mr. Respress had a 2004 conviction in New Jersey under NJSA 2C:12-3(a), for "Terroristic Threats — Threat to Commit Crime of Violence" in the Third Degree (Statement ¶ 8; Broad Aff, Ex H). Under this statute, a person is guilty of the crime of a terroristic threat in the third degree "if he threatens to commit any crime with the purpose to terrorize another or cause evacuation of a building, place assembly, or facility of public transportation, or otherwise to cause a serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience" (NJSA 2C:12-3[a]). The 2004 conviction resulted in Mr. Respress being sentenced to twelve days in jail (Statement ¶ 9, Broad Aff, Ex H).

In addition to this documentation regarding Mr. Respress's hiring, defendant presented his Hospital work evaluations, which indicate that from 2010 through 2017 he either met or exceeded expectations in each category presented on the form (Statement ¶¶ 10-25; Broad Aff, Ex F). In 2018, however, as a result of his assault on plaintiff, Mr. Respress was terminated (Statement ¶ 55 ; Broad Aff, Ex K [Deposition Transcript of Helen Krajick, Operating Room Supervisor] at 19).

Ms. Respress was hired by defendant as a unit secretary on June 8, 2018 (Statement ¶ 27; Broad Aff, Ex G ). Before she started work, defendant obtained a national criminal background check, which included New York, the Federal District of New York, and the National Sex Offender Registry (Statement ¶¶ 29-30). The check did not reveal any criminal history for Ms. Respress (Broad Aff, Ex G at 29-33). Due to the August 9, 2018 incident with plaintiff, Ms. Respress was also terminated effective the following day (Statement ¶ 54).

Defendant also presents the deposition transcript of Richard Bytner, the Hospital's Security Manager at the time of the incident. Bytner explained that he is responsible for the physical security of Defendant's buildings, including the parking garage where plaintiff was assaulted (Broad Aff, Ex L [Transcript of Richard Bytner's May 28, 2024 Deposition] ["Bytner Tr"]). According to Bytner, in 2018 St. Peter's had between 70 and 80 security personnel across all of its facilities ,with approximately 20 security personnel assigned to its Hospital in Albany, New York (id. at 14). However, security personnel were not assigned to the garage, where the only staff was the parking attendant who managed the collection of fees (id. at 26). On occasion, when security staff were available, they would conduct a patrol through the garage (id. at 38). The priority for such staff, however, was patient safety in the main Hospital building (id.).

Bytner testified that surveillance cameras were also placed throughout the garage for security purposes, including two cameras located in the exit gate area where fees were collected (id. at 38, 41). Although any specific security camera could be accessed from a monitoring room for live viewing, none of the video monitors were dedicated solely to garage surveillance (id.). Instead, there were four large video monitors in the viewing room that a security officer could use to watch different locations (id. at 27). According to Bytner, there was typically at least one staff member in the viewing room unless that person was responding to a security call, and the officer in this room also had access to telephones (id. at 28).

The garage also had "blue light" security stations, including at the exit/entrance near the [*5]attendant's booth, at which a button could be pushed to call security (id. at 29-31). In addition, the attendant had a phone and radio in his booth, from which he or she could call security in the video monitoring room (id. at 31, 42).

Bytner explained that St. Peter's had an emergency radio code protocol whereby hospital staff could quickly signal the presence of a "behavior emergency" by utilizing the term "Code Gray" over the radio or intercom system (id. at 32-34). This phrase signaled that hospital personnel were in need of assistance with de-escalation or management of a patient or visitor (id.). Once a "Code Gray" is announced — even if by the garage attendant — all available clinical and security personnel are to respond to the identified location (id. at 34-35, 45). Whenever there is a "Code Gray," an incident report is prepared by responding staff (id.).

Bytner recalled reviewing the videos of plaintiff's assault sometime after it occurred (id. at 48-47). At his deposition, he could not confirm whether an incident report was generated by anyone who saw the video (id.). He stated that had the garage attendant radioed for a "Code Gray" at the time of the incident, it would have taken security personnel anywhere from two to eight minutes to arrive on the scene, depending on where they were stationed (id. at 53-54).

To support its contention that the employment background checks and security provided in the parking garage in 2018 were adequate, St. Peter's provided an affidavit from its expert, A. Benjamin Mannes, a security consultant and principal member of a security and safety consulting firm (Expert Affirmation of A. Benjamin Mannes, dated June 23, 2025 ["Mannes Aff"] ¶ 1). Mannes's experience included employment as a compliance officer developing corporate security and safety policies (id.).

Mannes offered the following opinions:

Background Checks: According to Mannes, a "healthcare sector employer has the responsibility to perform at least some minimal background check on any applicant to determine whether that applicant poses a threat to the employer, other employees, or members of the public" (id. ¶ 12). Thus, "it is routine for the employer to perform a criminal background check on any applicant it intends to hire as an employee" (Mannes Aff ¶ 12). Mannes explained, however, that although a nationwide background check is readily available today, such a service was not supported by the technology available to vendors in 2010 (id.). Thus, a background check for each state would have to be performed separately, and it was "common practice for such vendors only to perform criminal background checks in states where it was known the applicant resided"(id.). The exception to this practice occurred when the employer was in an interstate metropolitan commuting region such as the "tri-state area" of New York City, New Jersey and Connecticut, or if another state was indicated in a job application as being the candidate's residence and/or prior state of employment (id.).

With regard to Ms. Respress's Hospital personnel file, Mannes confirmed that a national background check was performed on her in 2018, with a specific search in New York and for federal crimes in the federal court for the Norther District of New York, along with a search of the National Sex Offender Registry (id. ¶ 13). Given that this background check revealed no criminal history, Mannes opined that there was no reason for the Hospital to believe that Ms. Respress had any criminal propensity towards physical violence or verbal assault (id.).

Mannes also opined, regarding Mr. Respress's criminal history, that "[a] conviction for counterfeiting does not reveal any kind of violent propensity in Mr. Respress, much less a propensity to commit assault, and would not be cause for the defendant to either refuse to hire Mr. Respress, or to otherwise suspect that he had violent tendencies" (id.). Mannes contends [*6]that "only crimes that include an element of violence would trigger an employer to either not hire the applicant or conduct a further investigation . . . [such as] breaking and entering, armed robbery, assault, and other crimes which involve physical harm to people or property" (id. ¶ 16).

As to the 2004 New Jersey felony threat conviction, Mannes avers that defendant did not have any duty to perform a criminal background check in New Jersey, as there was no indication in Mr. Respress's employment application or New York background check that he ever resided in New Jersey (id. ¶ 17). Moreover, Mannes stated that even if defendant had been aware of Mr. Respress's 2004 New Jersey conviction, since there is no evidence that Mr. Respress did anything but make a threat, this conviction does not indicate that Mr. Respress had a propensity to commit violence generally or engage in assaultive behavior, and would not have prevented defendant from hiring Mr. Respress, especially in light of New York's "fair chance" laws, which prohibit unfair discrimination of persons previously convicted of criminal offenses^FN6 (id.).

Mannes also points out that, for the eight years following his employment with St. Peter's, Mr. Respress was a model employee and was thought of as such by his supervisor even after he was terminated in 2018 for the assault on plaintiff (Mannes Aff ¶ 19; Broad Aff, Ex K at 19). According to Mr. Respress's personnel file, the Hospital initially hired him as a maintenance worker and, by the time he was terminated, he had been promoted to an orderly position (Mannes Aff ¶¶ 19; Broad Aff, Ex K at 18). Mannes explains that "it is very common for such employees to have criminal records, especially non-violent criminal records" (Mannes Aff ¶ 19). He opines that "[i]t is entirely reasonable for an employer to hire and retain an individual with such a non-violent criminal record" (id.).

Mannes also conducted a review of Ms. Respress's personnel file and the depositions submitted with defendant's motion. He opines that there was no indication in the record of any [*7]work-related outburst involving Ms. Respress prior to the incident with plaintiff (id. ¶ 14).

Garage Security: Mannes also discusses the adequacy of the safety measures taken by St. Peters in regard to the garage. He avers that the owner of a parking garage satisfies its duty to provide safety when it "(1) has adequate lighting; (2) has closed circuit cameras monitoring the garage at all times; (3) has some kind of control over access to and from the parking garage; and (4) has at least one person stationed within the garage, with the ability to contact security personnel if necessary" (id. ¶ 22).

In this case, Mannes contends that the issue of lighting is irrelevant since the assault occurred in the middle of the day when the garage exit area was illuminated with daylight (Mannes Aff ¶ 23). Given that at least two garage security cameras captured the entire incident, Mannes states that there is no question as to whether an adequate number of cameras were present (id.). As to control over the exit/entrance area, Mannes asserts that the garage gate and ticketing system were adequate for that purpose (id.).

Mannes states as well that the number of security personnel was sufficient, since in the absence of some indication that members of the public would be subject to a particular risk when utilizing the garage, "owners of parking garages do not have a duty to have security personnel stationed [there]" (id. ¶ 24). According to Mannes, garage owners "do not have a duty to have any kind of security personnel performing routine patrols in the parking garage, . . . unless there is some indication that members of the public would be at particular risk" (id.). Here, Mannes says that there was no indication of a particular risk of assault to members of the public who utilized defendant's garage, "especially considering that the assault occurred in the middle of the day, in broad daylight, with multiple witnesses" (id.). He further avers that defendant's use of a single parking attendant who had the ability to radio security if necessary or alert security via a call button, was reasonable (id. ¶ 25). Mannes opines that "[t]he risk of a member of the public being assaulted in the parking garage, again in the middle of the day in broad daylight with multiple witnesses, was extremely low and did not warrant having a dedicated security guard stationed in the garage or having security perform regular patrols of the garage" (id.). Further, Mannes contends that alternative measures would have been ineffective, since it is highly improbable that a patrol could have responded to the incident, which lasted for only one minute and 40 seconds, and security personnel stationed in the hospital would have taken at least two minutes to reach the garage (id. ¶ 27). Thus, even if the parking attendant had contacted the security office as Ms. Respress exited her vehicle — before any violence occurred — no one would have arrived on he scene until after plaintiff had driven away (id.).

In sum, Manning concludes that the Hospital did not breach any duty owed to plaintiff, nor did any of defendant's alleged actions or inactions cause plaintiff's assault^FN7 (id. ¶¶ 28-29).

Plaintiff's Opposition

In opposition to defendant's motion, plaintiff argues that there are questions of fact as to whether St. Peter's should have known that Mr. Respress had violent tendencies, and such warrant denial of summary judgment. Specifically, she contends that the Hospital was on notice of Mr. Respress's contacts with New Jersey from information in the records of his Albany County criminal convictions, and therefore was negligent in failing to conduct a New jersey criminal background check for Mr. Respress in addition to that conducted in New York (Attorney Affirmation of Ida Rose Nininger, Esq., dated August 11, 2025 ["Nininger Aff"] ¶ 32). According to plaintiff, the Hospital was also negligent in retaining Ms. Respress following an alleged verbal outburst in the emergency department that was witnessed and documented by St. Peter's security guard Brent Coye, but went unaddressed by defendant (id. ¶ 33). Plaintiff further argues, based on Coye's affidavit, that there is a question of fact as to whether Hospital security personnel could have arrived on the scene of the incident in time to prevent plaintiff's assault (id. ¶ 34). In addition, plaintiff maintains that security was also inadequate in the parking garage because none of the staff who witnessed the event, including the parking attendant, attempted to contact security personnel (id. ¶ 35).

In support of its opposition, plaintiff submitted an affidavit from Coye, who served as defendant's security supervisor from 2017 through 2020 (Affirmation of Brent Coye, dated August 11, 2025 ["Coye Aff"] ¶ 5). The affidavit combines Coye's personal recollections of the incident with opinions that are in the nature of expert testimony.

Mr. Coye states that on the date of the incident, he was on duty at St. Peter's (id. ¶ 9). He received a call from a security officer advising that an incident had been identified on the surveillance footage (id.). Coye recalls that, "by the time the subject incident was noted on surveillance, the incident was mostly over, and the plaintiff soon thereafter fled the scene" (id. ¶ 10). He avers that he "ultimately took a statement from [plaintiff] over the phone" (id.). Based on his review of the video, he determined that neither the parking attendant nor any other staff triggered any emergency buttons in the vicinity, or otherwise called security (id. ¶ 14).

Coye opines that, had his security team been notified of the incident through a timely "Code Gray" or other alert from staff, they "could have meaningfully responded to the subject incident in time to interceded and prevent some of the damage inflicted on the plaintiff" (Coye Aff ¶ 18). According to Coye, his team "would have responded from the Emergency Department office in less than two minutes" after receiving notice, and asserts without elaboration that an officer "would have gotten to the scene with enough time to prevent harm" (id. ¶ 16, 18). This claim is based on Coye "knowing the St. Peter's Hospital security staff intimately in order to schedule their shifts and direct them on a day-to-day basis" (id. ¶ 18). He asserts that he knew where he stationed his security personnel throughout the defendant's campus on a daily basis (id. ¶ 17). He further avers that, had the Hospital taken steps to provide staff "refresher trainings" on security procedures and emergency response codes such as Code Gray, "this assault could have been prevented or mitigated" (Coye Aff ¶ 29).

Coye also describes an incident that he says took place either earlier in 2018 or in the Autumn of 2017, in which Melvina Respress "had to be expelled from the Emergency [*8]Department" (id. ¶ 37).^FN8 Specifically, he states that Ms. Respress was in the Emergency Department yelling and swearing at staff and disturbing other persons in the waiting room, which led staff to call security for assistance (id. ¶ 33). Coye was part of the responding team, and upon their arrival Ms. Respress "grew yet further disturbed" and "began to show signs that she might become violent" (id.). The security team got her to leave the Department, although she continued to yell and scream in the parking lot and driveway (id.). Coye says that at the time he was not aware that Ms. Respress was a member of the hospital staff (id.¶ 34). He does not explain how he identified the person who caused the disturbance as being Melvina Respress.

To support her contentions that the Hospital's employment background checks and the security provided in the parking garage in 2018 were negligent, plaintiff provides an affidavit from her expert, Bonnie Michelman, a security/risk consultant who has held various security management positions, including Vice President and Chief Security Officer for Massachusetts General Brigham (Expert Affirmation of Bonnie Michelman, dated August 11, 2025 ["Michelman Aff"] ¶ 1). Her opinions are summarized below.

Charles Respress Background Check: According to Michelman, a hospital should "conduct a standard background check on all applicants, with particular sensitivity to violence or dishonesty in the candidate" (id. ¶ 6 [emphasis in original]). Although Michelman agrees that there was a time when a general nationwide background check was not available, she states that this was not the case in 2010, as "criminal records began to be available widely via online databases in 1998 with the rolling out of the Brady Handgun Violence Prevention Act of 1993" (id. ¶ 7). It is Michelman's professional opinion and "personal recollection" that defendant "could have obtained background checks outside of New York State easily" (id.).

Michelman further asserts that New Jersey should have been included in any background check because it comprises the "tri-state area," along with New York and Connecticut (id.). In addition, Michelman avers that if defendant's background check vendor was unable to provide a nationwide background check for prospective employees, the Hospital's failure to otherwise obtain a check of this scope on Mr. Respress was negligent (id. ¶ 9).

Michelman also says that the Hospital had reason to conduct a check on Mr. Respress in New Jersey because the notes on the background check in his personnel file indicate that he was selling t-shirts without a license near Giants Stadium, in New Jersey (id. ¶ 10). Michelman contends that this information connecting Mr. Respress to a crime in New Jersey should have caused St. Peter's to conduct a background check in that state, in addition to the New York check (Michelman ¶¶ 10-11). She expresses the opinion that defendant was negligent for not doing so, since it would have uncovered Mr. Respress's third degree felony conviction in New Jersey for threatening to commit a crime of violence (id. ¶¶ 10-12). She states, however, that she has no knowledge of the elements of this statute or under what circumstances one would be found guilty of this crime (id.). Despite this concession, she speculates that such a charge "surely must be inherently violent" and concludes on this basis that the New Jersey conviction indicates "that Mr. Respress is a violent offender," whose hiring was negligent (id. ¶ 12).

Retention of Melvina Respress: In opining on defendant's retention of Ms. Respress, Michelman relies primarily on Brent Coye's affidavit (Michelman Aff ¶ 19). She credits Coye's [*9]assertion that "to the best of his knowledge" he created an incident report concerning Ms. Respress's alleged outburst in "either earlier 2018 or in Autumn of 2017" (Michelman Aff ¶ 20; Coye Aff ¶¶ 37-38).

According to Michelman, if one were to credit Coye's account, "such an event could have resulted in Ms. Respress's termination" and should have led the Hospital to engage in "severe corrective action" (Michelman Aff ¶ 21 [emphasis added]; see Coye Aff ¶ 33). On the sole basis of Coye's description of the event, she concludes that Ms. Respress has a "volatile temperament and violent tendency" (Michelman Aff ¶ 21). Taking some "severe" action, in her opinion, "might have had a deterrent impact upon Ms. Respress and prevented the assault at issue" (Michelman Aff ¶ 24). Based on Coye's assertion that an incident report for the event would have been sent to "top executives and human resources for defendant," Michelman contends that someone should have flagged the report and taken appropriate action (id. ¶ 22).

Security Measures: Michelman further cites a statement by Coye that the Hospital's security training and protocols were not regularly communicated to and reviewed by hospital staff (id. ¶¶ 32-33; see Coye Aff ¶ 28 [security procedures were explained at time of hire, but "at no point" subsequent to that were they "reinforced and updated," which was a "significant defect"]). Based on this critique, Michelman opines that the lack of repetition in security training — especially given that the parking attendant failed to contact security during the attack — "may have been a direct cause of the security staff's failure to respond to the assault" (Michelman Aff ¶¶ 32-33).

Defendant's Reply in Further Support of Summary Judgment

In its reply submission, defendant asserts — among other things — that plaintiff failed to disclose Coye's name in response to defendant's Omnibus Discovery Demands that requested, "any an all eyewitnesses" to the conduct at issue ( Reply Affirmation of Marshall Broad, Esq. ¶¶ 12-18, Ex A). Instead, plaintiff responded that it was "not in possession of any such eyewitness address or information at this time" (id. ¶¶ 13-14, Ex B at Response Nos. 11-12). The Hospital also contends that plaintiff failed to disclose the full record constituting Mr. Respress's New Jersey criminal record in her possession, and then used the undisclosed pages in response to the motion for summary judgment (id. ¶¶ 21-22, Ex D; Nininger Aff, Ex W). Based on such alleged failures, defendant contends that Coye's affirmation and Mr. Respress's criminal record should not be admissible in opposition to the summary judgment motion (id. ¶ 23).

As to the merits of the motion, defendant concedes that it was aware that Mr. Respress committed a crime in New Jersey (i.e., the sale of t-shirts), but since he was prosecuted and convicted in New York in connection with such actions, the Hospital had no obligation to conduct a criminal background check in New Jersey (id. ¶ 30). Defendant further notes that the term "tri-state area" refers to New York City, New Jersey and Connecticut, and does not include the entire State of New York (id. ¶ 32). In any event, defendant takes the position that, even if a criminal background check had been conducted in New Jersey and the Hospital had been made aware of Mr. Respress's conviction for making a threat of violence, because that conviction did not involve actual violence, but only threats of such, it did not indicate that Mr. Respress had a propensity for violent actions (id. ¶ 33). As to Ms. Respress, it contends that the only evidence plaintiff proffers to show the Hospital's knowledge of her alleged propensity — the account by Coye of her outburst — is too unclear to have any probative value (id. ¶ 39), and would not have triggered any obligation on the part of St. Peter's to either decline to hire or terminate her, since nothing in Mr. Coye's affirmation indicates that she was ever actually violent (id. ¶¶ 42-47).

Finally, since the assault lasted only 35 seconds and did not commence until 57 seconds after Ms. Respress got out of her car, defendant asserts that there would have been no time for its security personnel to have stopped the assault even had they been notified immediately (id. ¶¶ 55-61, 64-67). And in any event the attack was, according to defendant, unforeseeable (id. ¶ 77).

Plaintiff's Sur-reply

With leave of the Court (NYSCEF Doc. No. 125), plaintiff submitted a sur-reply. It states that during the discovery process in this action, Coye was personally interviewed by defendant's attorneys and defendant was aware that he was a witness to the events surrounding the assault, as he is identified in the police report (id. ¶¶ 4-5). As a result, plaintiff argues that any failure to disclose him as an eyewitness caused no prejudice to defendant, and should not preclude consideration of his affirmation (id. ¶¶ 10-12).

II. Plaintiff's Motion for Sanctions

Plaintiff's Motion for Sanctions

In a cross-motion, plaintiff seeks to strike defendant's answer, along with the imposition of a monetary penalty to include costs and legal fees, for the alleged spoliation of the incident report prepared following plaintiff's assault, and an incident report concerning Ms. Respress's alleged outburst in St. Peter's emergency department (Nininger Aff ¶ 38). Plaintiff accuses defendant of failing to implement a proper litigation hold and intentionally destroying these reports (id. ¶¶ 43-44). In addition to these spoliation claims, plaintiff also seeks monetary sanctions because defendant allegedly engaged in a pattern of delay during the discovery process (id. ¶¶ 45-48).

The primary support for the motion is Coye's affidavit. He attests that he drafted the incident report concerning the assault at issue, and filed it with the defendant's incident reporting system (id. ¶ 35). This process resulted in automatic e-mails with copies of the report sent to several Hospital personnel, including its chief officers, hospital attorney and Coye's immediate supervisor Mr. Bytner, as well as defendant's human resources department (id.). Coye states that the report "must exist somewhere in the system," or if not "a serious effort must have been made to eradicate its existence" (id. ¶ 36).

Additionally, Coye avers that "[t]o the best of [his] recollection [he] also created an incident report" regarding the incident in which Melvina Respress had to be expelled from the Emergency Department" (id. ¶ 37).^FN9 He contends that, if the report cannot be found on the St. Peter's system, its "disappearance must be deliberate" (id. ¶ 38).

Defendant's Opposition to Spoliation Motion

Defendant concedes that during discovery plaintiff requested production of all reports concerning plaintiff's assault (Opp Aff ¶ 8). Counsel for defendant states that he directed the Hospital to search for reports responsive to such demands, but was advised that defendant did not have any such documents, and this was conveyed to plaintiff's counsel in 2022 and 2023 (id. ¶¶ 10-13). Plaintiff did not object to these discovery responses (id. ¶ 11). Moreover, defendant points out that plaintiff never requested a separate incident report concerning Ms. Respress, but only generally sought reports detailing her "past security violations" (id. ¶¶ 7-9).

On April 2, 2025 plaintiff's counsel e-mailed an additional discovery request for the identity of security personnel working on August 9, 2018, but this request did not seek incident reports related to the August 9, 2018 assault or any other incident involving Ms. Respress (id. ¶¶ 15-16). Defendant asserts that the first time plaintiff specifically mentioned these two incident reports was in this motion made after the note of issue was filed (id. ¶¶ 17-18). On this basis, defendant argues that such a motion is not in compliance with the CPLR and the New York Rules of Court and should be denied on that ground alone (id.).

Defendant's counsel avers that in response to this motion, it again directed the Hospital to search for the incident reports (id. ¶ 19). The search was carried out by Richard Bytner, St. Peter's Security Manager since 2017 (Affirmation of Richard Bytner, affirmed on October 8, 2025 ["Bytner Aff"] ¶ 1). According to Bytner, because the assault at issue was considered criminal activity by the Hospital's security personnel, as a matter of policy the security staff retrieved and saved the security videos that recorded the incident (id. ¶¶ 5-6).

Bytner explains that the hospital would also have created an incident report for this type of activity, but such would be digitally saved in a separate shared data folder (id. ¶ 7). The digital folders for incident reports are divided by year, with all reports generated for 2018 kept in one subfolder (id.). Due to the digital storage available, hard copies of incident reports were not maintained (id.). Upon creation of an incident report, such would also be shared with the Hospital's Security Management personnel, including Bytner, via e-mail (id. ¶ 8). Pursuant to St. Peter's policy, e-mails were retained for only six months and thereafter would be automatically purged along with any attached digital documents (id. ¶ 9).

Bytner avers that he personally performed multiple searches of the computer drive that contains the incident reports, both when defendant first received the complaint and throughout this litigation (Bytner Aff ¶ 10). He was unable to find the incident report concerning the assault on defendant's shared computed drive, nor were any e-mails used to disseminate the incident report saved on this drive (id.). He recalls receiving a copy of this incident report in August of 2018 and reviewing it, but does not have any recollection as to its specific contents (id. ¶ 11). Bytner also spoke with several security personnel who may have received the e-mail with the report attached, but none of them retained a copy, nor did they recall its contents (id. ¶ 12).

Since 2018, St. Peter's has had three Directors of Security (id. ¶ 13). Bytner interviewed each of them and learned that, sometime after plaintiff's incident, an "overhaul" of the Hospital computer servers occurred which entailed moving all of the files — including the files containing incident reports — to a new server (id.). According to Bytner, the overhaul was not intended to purge any documents or files, but after speaking with the defendant's Regional Manager of Information Technology, he now understands that at some point after 2018 there were a number of St. Peter's documents that were lost from the shared server where security files were stored (id. ¶ 14). Bytner expresses the view that the incident report concerning plaintiff may have been lost during this overhaul (id. ¶ 15, 17). Although he was able to find other reports from 2018 and prior on the server, he could not find the one concerning plaintiff (id.). He checked all incident report folders in case the report was misfiled or mislabeled, but without success (id. ¶¶ 16-17).

Bytner represents that his investigation did not reveal any information indicating that the report had been intentionally deleted (id. ¶ 18). He asserts that this conclusion is supported by the fact that the security videos, police report and the assailants' personnel files have been preserved (id.). Bytner maintains further that the incident report, which would contain only [*10]factual information, would not have provided any additional information beyond what has already been provided to plaintiff, especially in the security video (id. ¶¶ 20-23).

As for the any incident report concerning Melvina Respress, Bytner's investigation did not uncover any information regarding this alleged incident (id. ¶ 24).

Plaintiff's Reply in Further Support of Sanctions

Plaintiff argues, in reply, that the Hospital had a duty to preserve the incident reports immediately following plaintiff's accident because of "police involvement, preserved surveillance, security review, and terminations" (Attorney Affirmation in Reply of Ida Rose Nininger, Esq., dated October 29, 2025 ["Nininger Reply"] ¶ 4). According to plaintiff, the Hospital's preservation of the security footage demonstrates it was aware of its duty to preserve reports, and thus its failure to do so is sanctionable conduct (id.). Plaintiff further argues that defendant's failure to preserve should be found intentional, or at least grossly negligent (id. ¶ 8). If spoliation is not found, plaintiff contends that monetary sanctions should still be awarded because defendant exhibited an "overall pattern of noncompliance" with the discovery process (id. ¶¶ 30-33).

Discussion

To obtain summary judgment, a movant must establish his or her position "sufficiently to warrant the court as a matter of law in directing judgment" in its favor (Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979], quoting CPLR 3212[b]). The proponent of a summary judgment motion must initially make a prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any genuine material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The failure to make such a showing mandates denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If a prima facie showing is made, the burden shifts to the party opposing the motion for summary judgment to come forward with evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Such proof, however, "must provide evidence based on more than hypothetical or unsubstantiated assertions" (Nellenback v Maddison County, 44 NY2d 329, 335 [2025]).

With this standard in mind, I address the issues raised on this motion.

Negligent Hiring/Retention

To establish a cause of action for negligent hiring, plaintiff must demonstrate that, where an employee commits an act outside the scope of his employment, "the employer was aware of, or reasonably should have foreseen, the employee's propensity to commit such an act" (Medical Care of W.NY v Allstate, Ins. Co., 175 AD3d 878, 879 [4th Dept 2019]; see also Travis v United Health Services Hospitals, Inc., 23 AD3d 884, 884-885 [3d Dept 2005] [same]). In other words, defendant's liability here hinges on whether the Hospital had, or should have had, notice that Mr. Respress and Ms. Respress had a propensity for violent or assaultive behavior (see Nellenbeck v Madison County, 44 NY3d at 334; see also Novak v Sisters of the Heart of Mary, 210 AD3d 1104, 1105 [2d Dept 2022] ["An employer can be held liable under theories of negligent hiring, retention, and supervision where the complaint alleges that the employer knew or should have known of the employee's propensity for the conduct which caused the injury"]). Under this standard, plaintiff need not show the employer had "actual knowledge of multiple past acts by the employee similar to those alleged in the complaint," only that it "ha[d] reason to know of the [*11]facts or events evidencing that propensity"^FN10 (see Nellenback, 44 NY3d at 337 [citation omitted]).

Here, plaintiff's primary argument in regard to the negligent hiring of Mr. Respress rests on his conviction for what counsel characterizes as a "violent crime" — that is, his New Jersey conviction for making a terroristic threat — about which defendant "should have known" (Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Motion for Sanctions Against Defendant for Spoliation, dated August 11, 2025 ["Pl MOL"] at 4).

I find, however, that this is insufficient to create a disputed issue of material fact such as would preclude summary judgment. Assuming — on the basis of Ms. Michelman's expert affidavit — that there is a question of fact as to whether it would have been feasible and standard practice in 2010 to conduct a nationwide background check, plaintiff still must still show that the information available to St. Peter's would have revealed that Mr. Respress had a propensity to engage in assaultive behavior (see Hashimi v Gap, Inc., 232 AD3d 857 858-859 [2d Dept 2024] [failure of employer to carry out background check does not support negligent hiring claim, when "plaintiff failed to submit any evidence that a background check of [its employee] would have revealed a propensity to commit misconduct"]; Koran I. v New York City Bd. of Educ., 256 AD2d 189, 191 [1st Dept 1998] [dismissing negligent hiring claim arising out of teacher's molestation of students, "because a routine background check would not have revealed his propensity to molest minors"]; KM v Fencers Club, Inc., 164 AD3d 891, 893 [2d Dept 2018] [granting defendant summary judgment where its employee engaged in sexual assault, but "plaintiffs failed to come forward with any evidence that a criminal background check would have revealed a propensity to commit sexual assault"]). Here, the New Jersey background check that plaintiff claims should have been undertaken by the Hospital would have revealed an additional conviction against Mr. Respress for making a threat to commit a crime of violence, [*12]but this is not similar to the assaultive conduct that caused plaintiff's injury. Thus, it does not show that he had a propensity to engage in the sort of assault he carried out against plaintiff (see Nickey v City of Mt. Vernon, 230 AD3d 590, 591-592 [2d Dept 2024] [prior conviction for unlawful discharge of weapon while intoxicated insufficient to put City on notice of any propensity for officer to act violently or aggressively in the manner that he did towards plaintiff]; (Ronessa H. v City of New York, 101 AD3d 947 ["although the plaintiff presented testimony that [police officer who assaulted her] had been reprimanded for failing to report a lost prisoner, that is not conduct that would reasonably put the City on notice that Johnson was inclined toward conduct such as that which allegedly caused the plaintiff's injuries"]).

Of particular relevance here, in the eight years that followed his hiring, Mr. Respress's records reveal no disciplinary violations, and consistently good reviews. Given the passage of time between the earlier conviction and the incident, plaintiff cannot show on that basis that defendant knew of a propensity by Mr. Respress to engage in violence at the time of the assault (see Stevens v Kellar, 112 AD3d 1206, 1209 [3d Dept 2013] [where employee had been convicted of assault more than ten years earlier, and his extensive work history thereafter was devoid of complaints regarding employee's behavior, his prior conviction was insufficient to put employer on notice that employee was inclined toward assaultive conduct that injured plaintiff]; see also Taylor v Point at Saranac Lake, Inc., 135 AD3d 1147, 1149 [3d Dept 2016] [claim alleging negligent hiring of snowmobile company that injured and killed plaintiffs in accident dismissed; fact that company had accident 11 years before under different circumstances did not show propensity to do this type of harm]).

As a result, I find that defendant has met its prima facie burden for summary judgment on the cause of action for the negligent hiring and retention of Mr. Respress, and plaintiff has failed to present any evidence to rebut it.

I reach the same conclusion in regard to plaintiff's causes of action for the negligent hiring and retention of Ms. Respress. Again, for liability to be found, the evidence must show that St. Peter's knew or should have known of Ms. Respress's tendency to engage in assaultive behavior (see Nellenback, 44 NY3d at 334; Nickey, 230 AD3d at 591-592). Here, the only alleged notice of any such propensity is Coye's claim that in 2017 or 2018, either before Ms. Respress was hired by St. Peters or soon thereafter, Ms. Respress was "agitated and upset, yelling and swearing" in the Emergency Room (Coye Aff ¶ 33).

Crediting this evidence and drawing every inference in plaintiff's favor — as I must on this motion — does not show that the Hospital was aware of a propensity by Ms. Respress to engage in assaultive behavior. At most, Coye's testimony indicates that she was agitated and causing a disturbance — and that she ultimately left the room when confronted by security, without assaulting or making physical contact with anyone. This does not show that the Hospital was on notice of any propensity by her to engage in violent behavior^FN11 (see Stevens, supra; Nickey, supra).

In sum, on the basis of the evidence before me, defendant has established its right to [*13]judgment on these causes of action as a matter of law.

Parking Garage Security Liability

As with all property owners, "a hospital has a duty to protect persons lawfully present on its premises from the reasonably foreseeable criminal or tortious acts of third persons" (Sandra M. v St. Luke's Roosevelt Hosp. Center, 33 AD3d 875, 878 [2d Dept 2006]). This is true even when the property at issue is a parking garage (see Plocas v Best Wester Hotel & Convention Center, 300 AD2d 556, 556 [2d Dept 2002] [owner of parking garage was "obligated to take reasonable precautionary measures to minimize the risks of criminal acts to make the premises safe for visitors"]). Such "reasonable precautionary measures" can be satisfied by having adequate lighting; appropriate entrance barriers that lock to keep out intruders or must be opened by an attendant; an intercom system; and surveillance cameras (see Novikova v Greenbriar Owners Corp., 258 AD2d 149, 151-152 [2d Dept 1999] [owner satisfied prima facie burden for summary judgment where building had proper lighting, inner door lock with buzzer system, surveillance camera and doorman on duty]).

Moreover, a property owner "is not the insurer of the visitor's safety" and additional protective measures are not required unless it is shown that (1) the property owner knew or should have known of prior conduct by third persons that would create a foreseeable danger to visitors, or (2) the security measures provided by the property owner were inadequate (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519-520 [1980]; Plocas, 300 AD2d at 556).

Here, defendant established that the parking garage had an attendant, equipped with a telephone and security radio, who managed visitor access to the parking garage through the use of lift gates; surveillance cameras were placed throughout the garage with security personnel stationed in a video monitoring room; and "blue light" security stations were located throughout the garage that are operated by the push of a button to call security (Bytner Tr 38-42). Based on this showing, I find that St. Peter's met its prima facie burden in showing that the garage employed reasonable safety measures to protect visitors (see Novikova, 258 AD2d at 151-152).

In response, plaintiff failed to raise a triable issue of fact as to defendant's negligence. As set forth above, plaintiff has not shown that the assailants' actions were foreseeable, nor did plaintiff offer any evidence of prior criminal activity at the parking garage that would have put defendant on notice of any other danger to visitors. Instead, plaintiff argues that the security was inadequate because, as asserted by Coye, the parking attendant failed to radio for aid and had he done so, "this incident could have been appropriately responded to and prevented" (Coye Aff ¶ 13). This conclusion, however, is based solely on Coye's speculation that had security been called, staff could have arrived on the scene "in less than two minutes" (id. ¶ 16), and his claim that the security department did not provide sufficient training in 2018, and if it had "adequate processes in place" the attendant would have timely contacted security, rather than stand by while plaintiff was assaulted (id. ¶ 13).

Coye's hypothetical assertions ignore the reality of the situation that is depicted in the surveillance video.^FN12 Even if one credits his estimate on the amount of time it would have taken [*14]security staff to arrive at the garage entrance, the video evidence before me demonstrates that the assault, measured from the time plaintiff arrived at the garage exit gate to the final time she was struck, lasted only 65 seconds. Additionally, the time that it took the assailants to start and stop striking plaintiff was approximately 38 seconds. Thus, plaintiff has failed provide any factual evidence to indicate that any security personnel could have arrived on the scene in time to prevent the assault regardless of whether the parking attendant had radioed for help (see Nellenback, 44 NY3d at 335 [opposing party must provide more than hypothetical or unsubstantiated assertions to overcome summary judgment]).

To the contrary, plaintiff arrived at the gate and then left the garage within one minute and 40 seconds, which means that — even assuming that Coye's guesstimate of how fast the security staff could have arrived is accurate — they would have made it to the exit gate only as plaintiff pulled away. Thus even if the attendant had received training on how to call security in the case of a "Code Gray," it would not have resulted in a different outcome for plaintiff.

Finally, under the circumstances presented in the record, I find that the intervening act of the employee-assailants was "extraordinary and unforeseeable as a matter of law," and thus served to break any causal connection between defendant's alleged negligence in training its staff and plaintiff's injuries (Santiago v New York City Housing Authority, 63 NY2d 761, 762-763 [1984] [finding no causal connection in defendant's failure to repair a "jammed" exterior door and plaintiff being shot in leg by assailant while trying to open said door]; see also Barone v Liberty Cab Co., 227 AD3d 1393, 1394 [4th Dept 2024] ["the negligence complained of must have caused the occurrence of the accident from which the injuries flow"], lv denied 42 NY3d 908 [2024]).

In light of all the foregoing, defendant is entitled to summary judgment dismissing plaintiff's claim that it was negligent in providing inadequate security in its garage.

Spoliation Motion

CPLR 3126 allows for the imposition of sanction on a party that "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." Here, plaintiff claims such a sanction is appropriate due to defendant's failure to produce incident reports for the assault at issue and for the disturbance caused by Ms. Respress in 2017 or 2018 as recounted by Mr. Coye (see Pl MOL 7).

The party seeking such a sanction has the burden to 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" (Pegasus Aviation I, Inc. v Varig Logistica, S.A., 26 NY3d 543, 547 [2015] [cleaned up]). A culpable state of mind may include negligence, but in that case plaintiff must show that spoliated materials are relevant to a claim or defense, while in the case of intentional spoliation such relevance is presumed (id.). Moreover, to demonstrate that a party had an obligation to preserve evidence, the movant must at least show that "the spoliator was on notice that the evidence might be needed for future litigation" at the time it was destroyed (see Doviak v Finkelstein & Partners, LLP, 137 AD3d 843, 846 [2d Dept 2016]).

I note at the outset that the record is at best unclear as to how these documents came to be lost. Indeed, in regard to the incident involving Ms. Respress, it is not clear that the report sought ever existed. The only evidence for such is in the affidavit of Mr. Coye, who states that "to the best of [his] recollection," he wrote such a report, although in the next statement he raises [*15]the possibility that "an incident report was not created," only to return to the assertion that he is "confident" that such exists (Coye Aff ¶¶ 36-37). Moreover, as noted, the affidavit provides no indication at all of how Coye knew that this incident involved Ms. Respress. In any event, even if there was such a report, its relevance to this action would not have been apparent on its face, and thus there would have been no requirement that it be preserved until it was sought via document demand, which appears to have happened on July 6, 2022^FN13 (see Nininger Aff, Ex I).

As to the incident report on the assault of Ms. Adrikopolous, plaintiff argues that St. Peter's was on notice of future litigation relating to the assault — and therefore of the need to preserve on the very same day that the assault occurred (Nininger Aff ¶ 42; Pl MOL at 11). The only evidence plaintiff proffers for such a theory, however, is the fact that defendant reviewed the digitally saved surveillance footage, created an incident report, was advised that plaintiff reported the incident to police, and subsequently terminated the employment of Mr. and Ms. Respress (id.). But none of these events indicate that the Hospital would be sued civilly, and no notice of such was conveyed to defendant until Andrikopolous served her complaint on St. Peter's on June 23, 2020 (Bytner Aff ¶ 3; see Monteiro v Werner Co., 301 AD2d 636, 638 [2d Dept 2003] ["Contrary to the plaintiff's contentions, neither the fact that the plaintiff was gravely injured nor that the Occupational Safety and Health Administration conducted an investigation at the work site the following day put the [defendant] on notice of future litigation or a need to preserve [evidence]"]; cf. Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d 605 [2d Dept 2014] [defendant spoliated evidence when it was destroyed after defendant received a written demand from an attorney for plaintiff that it be preserved]).

All that said, an inference may potentially be drawn that the report on the August 2018 assault was disposed of negligently by defendant after it was on notice to preserve the document.^FN14 Defendant admits that such a report was created (see Bytner Aff ¶ 11), and the only evidence it submits regarding the fact that it is now missing is the following:

"After speaking with our Regional Manager Information Technology, upon information and belief, after 2018 there was an incident where a number of documents were lost from the St. Peter's Health Partner's shared server. . . . [W]e are unsure what had happened to [*16]the document after it had been emailed.. It is possible that it could have been lost during the migration from one server to another, or that it was mis-labeled, or misfiled. While it appears that any incident report generated as a result of the assault has been lost, during my investigation into this issue, I could find no evidence that the incident report had been deleted intentionally. All of the other documentation and information related to the assault, including the security video footage, the police report, and the personnel files for Mr. Respress and Ms. Respress, were preserved" (id. ¶ 14, 17-18).

In short, defendant no longer possesses the document, but has no understanding of what became of it, except that at some point after 2018 (on information and belief), it may have been lost in an unspecified incident. At very least, this testimony leaves open the door to the possibility that the disposal of this record occurred during this litigation.

But even assuming that is true, at the end of the day no sanction is warranted, as there was no prejudice to plaintiff from such loss. In regard to the Respresses' assault on Andrikopolous, there is video of the entire incident from start to finish. It is not clear what a report of the incident could add, and plaintiff does not explain how it might aid her case. It would not be relevant to the negligent hiring and supervision claims, and as to the cause of action for negligence of the Hospital's security procedures, the video makes clear that the brief nature of the incident left no time for intervention by security personnel. In any event, given that everything that took place during the assault was filmed, the absence of the report did not prejudice plaintiff, and as a result there is no basis for any sanction (see Jennosa v Vermeer Mfg. Co., 64 AD3d 630, 631-632 [2d Dept 2009] [no sanction is appropriate "where the evidence lost is not central to the case or its destruction is not prejudicial"]).

As to the earlier incident involving Ms. Respress, even as described by Coye in plaintiff's submission, it does not reveal anything which would put defendant on notice of any tendency on her part to attack another person years later.

Under these circumstances, where there is no basis to believe that the lost documents could have assisted plaintiff's case, there is no basis for imposition of any sanction against defendant (see Bishop v Curry, 83 AD3d 1431, 1432 [4th Dept 2011] [no sanction for alleged spoliation; loss of photograph did not prejudice defendant where there were other photos of accident scene]; Jennosa v Vermeer Mfg. Co., 64 AD3d 630, 631-632 [2d Dept 2009] [no sanction is appropriate "where the evidence lost is not central to the case or its destruction is not prejudicial"]; Montagnino v Inamed Corp., 35 Misc 3d 1229[A], *5 [Sup Ct Nassau County 2012] [denying spoliation motion where loss of evidence was not fatal to plaintiffs' action, no evidence of willful or intentional destruction was offered and plaintiffs did suffer prejudice as a result of the loss]).

Finally, I decline to impose monetary or other sanction on the basis of plaintiff's claims of overall contumacious conduct by defendant in regard to discovery. Plaintiff's allegations of a "pattern of delay and failure to produce relevant discovery" is based " [m]ost importantly" on the fact that its demand for incident reports "were ignored or rejected" (see Nininger Aff ¶ 45). But defendant's position — which there is no reason to question on the record before me — is that it could not locate those reports and they were either inadvertently deleted (in the case of the August 2018 incident) or simply may not exist (in regard to the earlier incident involving Ms. Respress). Thus, plaintiff's argument is essentially one for spoliation dressed up in another form. For reasons set forth above, I cannot find that this creates a basis for sanctions.

Accordingly, for the reasons set forth above, it is hereby

ORDERED that defendant's motion for summary judgment is granted, and the complaint is dismissed; and it is further

ORDERED that plaintiff's cross-motion for sanctions is denied.

This constitutes the Decision & Order of the Court. This Decision & Order is being electronically filed with the Clerk of the Court, with copies being e-mailed to counsel for the parties. The signing and e-filing of this Decision and Order shall not constitute Notice of Entry, and counsel is not relieved from the applicable provisions of the CPLR with respect to filing and serving Notice of Entry.

ENTER

Dated: March 20, 2026

Albany, New York

David A. Weinstein

Acting Supreme Court Justice

Papers Considered:

1. Notice of Motion for Summary Judgment with Attorney Affirmation of Marshall Broad, Esq., dated June 27, 2025, with Exhibits annexed thereto, along with Statement of Material Facts, dated June 27, 2025, and Memorandum of Law, dated June 27, 2025.

2. Notice of Motion for Sanctions with Attorney Affirmation of Ida Rose Nininger, Esq., dated August 11, 2025, with Exhibits annexed thereto, and Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Motion for Sanctions against Defendant for Spoliation, dated August 11, 2025.

3. Attorney Reply Affirmation of Marshall Broad, dated September 8, 2025, with Exhibits annexed thereto.

4. Notice of Motion and Attorney Affirmation of Ida Rose Nininger, Esq. for filing Sur-Reply, dated September 17, 2025, with Exhibit annexed thereto.

5. Attorney Affirmation in Opposition to Motion for Sur-Reply of Marshall Broad, Esq., dated September 25, 2025.

6. Order & Decision, dated October 1, 2025 permitting Sur-Reply.

7. Sur-Reply Affirmation of Ida Rose Nininger, Esq., filed October 1, 2025, with Exhibits annexed thereto.

8. Attorney Affirmation of Marshall Broad in Opposition to Sanctions Motion, dated October 8, 2025, and Affirmation of Richard Bytner, dated October 8, 2025, with Exhibit annexed thereto, along with Memorandum of Law, dated October 8, 2025.

9. Attorney Affirmation in Reply of Ida Rose Nininger, Esq., dated October 29, 2025.