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JOSE MINAYA, Respondent, v. DUANE READE INTERNATIONAL, INC., Appellant.

In sanctioning defendant for failing to preserve critical evidence, the motion court appropriately exercised its "broad discretion to provide . . . relief to the party deprived of the lost evidence" ( Ortega v City of New York, 9 NY3d 69, 76). Defendant failed to preserve a video recording that may have shown the stairway before and during plaintiff's accident. The unavailability to plaintiff of the video recording may have impaired his ability to establish that defendant possessed the requisite notice of a defective condition on the stairs. Under these circumstances, however, the extreme sanction of preclusion is not warranted "to restore balance to the matter" ( Baldwin v Gerard Ave., LLC, 58 AD3d 484, 485). Rather, an adverse inference is sufficient to prevent defendant from using the absence of the videotape to its own advantage ( Tomasello v 64 Franklin, Inc., 45 AD3d 1287).

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MINAYA v. DUANE READE INTL
(Oct 1, 2009)