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Burch v. New York City Housing Authority

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 22, 2010

WINIFRED BURCH, PLAINTIFF-APPELLANT,
v.
NEW YORK CITY HOUSING AUTHORITY, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered August 20, 2009, which, in an action for personal injuries allegedly sustained in a slip and fall down a staircase in defendant's building, denied plaintiff's motion to strike defendant's answer, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Saxe, Nardelli, McGuire, Moskowitz, JJ.

105835/07

The motion court providently exercised its discretion in denying plaintiff's request for spoliation sanctions predicated on the loss of the personal handwritten notes of defendant's employee. There is no evidence that defendant intentionally or negligently disposed of the notes with knowledge of their evidentiary value to plaintiff or plaintiff's claimed need for them (see Diaz v Rose, 40 AD3d 429 [2007]; Herbert v City of New York, 12 AD3d 209, 210 [2004]). The employee was under no duty to make the notes, which were not prepared in the regular course of defendant's business, and upon learning of the existence of the notes, defendant undertook a search of the location they were last known to be kept, and could not find them (see Voultepsis v Gumley-Haft-Klierer, Inc., 60 AD3d 524, 526 [2009]). Nor did defendant willfully fail to comply with the discovery orders of the court (see Hernandez v Pace El. Inc., 69 AD3d 493 [2010]). The record shows that defendant timely responded to plaintiff's notice of discovery and inspection by providing all the documents that were in its possession responsive to plaintiff's requests.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100422

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