The opinion of the court was delivered by: Seybert, District Judge
Presently pending before the Court are motions for summary judgment by Kohl's Department Stores, Inc. ("Kohl's") and 3600 Long Beach Road, LLC ("3600") (collectively, "Defendants"), pursuant to Rule 56 of the Federal Rules of Civil Procedure, and a motion to strike the Defendants' answers and impose sanctions by Steven Siggelko ("Siggelko" or "Plaintiff"). For the reasons discussed below, Plaintiff's motion is DENIED and the Defendants' motion is GRANTED.
On November 22, 2005, Kohl's advertised a "door-buster special" the morning of November 23, 2005, and solicited customers to arrive before normal business hours for the sale. As a result, Plaintiff arrived at Kohl's at 7 a.m. on November 23, 2005. Siggelko entered Kohl's, made a purchase, and left the store to return to his car around 8:15 a.m. Just before he reached his car, Siggelko slipped and fell on the black ice in the shopping center parking lot that is owned by Defendant 3600. Although Plaintiff does not detail his injuries, he contends that he has become "sore, lame and disabled" and will likely be permanently injured.
Based on the submissions, it is apparent that neither party knows exactly how long the black ice was present before Plaintiff fell. Plaintiff did not observe any ice in the parking lot prior to the accident, nor does he allege that others noticed the ice. In fact, Plaintiff only saw the black ice after he fell. Defendants offers expert evidence that it had rained, but not snowed, the day before the accident. At some time around 3:00 a.m., approximately four hours before Plaintiff fell, the temperature dropped below freezing. At some point after the accident and after seeking medical treatment, Plaintiff returned to the scene to file an accident report with Kohl's. One Kohl's employee filled out the report and took pictures of the scene. By the time the report was filed and photographs were taken of the scene, the temperature had once again gone above freezing, the ice that caused the accident had melted, and any traces of water had dissipated.
At the time of the accident, Kohl's leased a portion of the shopping center from 3600, but Kohl's did not own or lease the parking lot where Plaintiff fell. Pursuant to the lease agreement, 3600 was responsible for maintaining the parking lot. Specifically, section 6.1(b) of the lease agreement provides that 3600 shall "police and maintain" all common areas within the shopping center "at all times after the Premises are opened for business to the general public . . . including but without limitation, . . . keeping the same free of snow, ice, water and rubbish . . . ." (Defs'. Mem. in Supp. of Mot. for Sum. J. at 6).
Subsequently, on May 4, 2006, Plaintiff served Kohl's with the Summons and Complaint, alleging negligence. On May 17, 2006, Kohl's removed the case to the Eastern District of New York.
I. Plaintiff's Motion to Strike Based on Spoliation of Evidence
A party's intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction. See Kronisch v. United States, 150 F.3d 112, 126-128 (2d Cir. 1998) (citing Nation-Wide Check Corp. v. Forest Hills Distributors, 692 F.2d 214, 217-18 (1st Cir. 1982); 2 John Henry Wigmore, Evidence in Trials at Common Law § 291 (James H. Chadbourn rev. 1979). This adverse inference rule is based on evidentiary, prophylactic, punitive, and remedial rationales. Id. at 126. The court in Kronisch explained those rationales at length:
The evidentiary rationale derives from the common sense notion that a party's destruction of evidence which it has reason to believe may be used against it in litigation suggests that the evidence was harmful to the party responsible for its destruction. The prophylactic and punitive rationales are based on the equally commonsensical proposition that the drawing of an adverse inference against parties who destroy evidence will deter such destruction, and will properly "plac[e] the risk of an erroneous judgment on the party that wrongfully created the risk." Nation-Wide Check, 692 F.2d at 218. Finally, courts have recognized a remedial rationale for the adverse inference -- namely, that an adverse inference should serve the function, insofar as possible, of restoring the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.
Id. (additional citations omitted)
In order for an adverse inference to arise from the destruction of evidence, the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed. Fujitsu Ltd. v. Federal Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001) (citing Kronisch, 150 F.3d at 126). This obligation only arises when the party has notice that the evidence is relevant to litigation, either because suit has already been filed or because a party should have known that the evidence may be relevant to future litigation. Kronisch, 150 F.3d at 126. Once a court has concluded that a party has this obligation, it must then consider whether the evidence was intentionally destroyed, and the likely contents of that evidence. Fujitsu, 247 F.3d at 436 (citing Kronisch, 150 F.3d at 127). In the context of deciding a motion for summary judgment, a court must construe all facts in favor of the non-moving party; thus, a court must assume a party has intentionally destroyed evidence that it had an obligation to preserve. Kronisch, 150 F.3d at 127. But this does not end the court's inquiry. For a court to impose sanctions for destruction of this evidence, Plaintiff must still make some showing that the destroyed evidence would have been relevant to the contested issues. Id. (citing, inter alia, Stanojev v. Ebasco Servs., Inc., 643 F.2d 914, 923-24 (2d Cir. 1981) (refusing to draw ...