Lorenzo v. 7201 Owners Corp.

Krentsel & Guzman, LLP, New York, N.Y. (Steven E. Krentsel and Julie T. Mark of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated January 20, 2015, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, as administrator of the estate of Steve M. Lorenzo (hereinafter the decedent), commenced this action alleging that the decedent slipped and fell as a result of a crack in the floor of the defendant's premises. The defendant moved for summary judgment dismissing the complaint, contending that the plaintiff "has no means of proving her case" because there is no evidence that the alleged crack was the cause of the fall other than the decedent's hearsay statements, and that dismissal of the complaint was warranted because of the plaintiff's alleged spoliation of certain photographic evidence.

A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case (see Walinchus v. Lubeck, 124 A.D.3d 631, 632, 1 N.Y.S.3d 255 ; to meet its burden in this regard. Further, since the defendant failed to establish that the plaintiff's alleged spoliation of certain photographs fatally compromised the defendant's ability to prove its defense, it failed to establish that dismissal of the complaint was warranted on that ground (see Morales v. City of New York, 130 A.D.3d 792, 793–794, 13 N.Y.S.3d 548 ; Pennachio v. Costco Wholesale Corp., 119 A.D.3d 662, 663–664, 990 N.Y.S.2d 54 ; Murillo v. Porteus, 108 A.D.3d 750, 752, 970 N.Y.S.2d 71 ). In its motion, the defendant did not request any alternative sanction based on the alleged spoliation.