The challenged resolving order (CPLR 3126) was an appropriate disclosure sanction for the Building defendants' repeated and continuing failure to produce documents that they were ordered to produce in a decision of this Court on a previous appeal ( 278 A.D.2d 127, 129), or to adequately explain their inability to do so (see Kihl v. Pfeffer, 94 N.Y.2d 118, 123; Jackson v. City of New York, 185 A.D.2d 768, 700). However, absent a clear showing of spoliation, we reject plaintiff's argument that other, more severe sanctions should have been imposed.
The IAS court should have granted the Building defendants' motions to dismiss the negligent infliction of emotional distress and punitive damages claims. The Building defendants owed a non-delegable duty to maintain the premises in a reasonably safe condition (see Sciolaro v. Asch, 198 N.Y. 77, 81-83; Gallagher v. St. Raymond's Roman Catholic Church, 21 N.Y.2d 554, 557). Under the applicable provisions of the New York City Building Code, the elevator cable defects involved in causing plaintiffs' alleged injuries are defined as conditions "dangerous to human life and safety" (1 RCNY 11-02[a]). That the Building defendants had notice of a dangerous condition does not satisfy the requirements for either a negligent infliction of emotional distress claim or a punitive damages remedy.
For conduct to serve as a basis for punitive damages, there must be evidence of malice or a wanton disregard for public safety (see Bothmer v. Schooler, Weinstein, Minsky Lester, P.C., 266 A.D.2d 154;Camillo v. Geer, 185 A.D.2d 192, 194). As the IAS court properly found, the Building defendants made prima facie showings that their conduct did not rise to this standard since various elevator improvements had been effected since their 1982 acquisition. Consultants had been retained to evaluate elevator performance and a modernization project had been contracted, although not yet implemented. Plaintiffs did not submit evidence which raised an issue of fact as to whether the Building defendants' conduct was either malicious or wantonly indifferent to public safety. Similarly, plaintiffs cannot establish the element of extreme and outrageous conduct for a negligent infliction of emotional distress claim since there is no evidence that the Building defendants' conduct was so outrageous in character and extreme in degree as to go beyond all possible bounds of decency (Howell v. New York Post Co., 81 N.Y.2d 115, 121-122). We have considered the parties' other arguments for affirmative relief and find them to be unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.