Judge Muir of Supreme Court, Queens County Issues Order Directing Plaintiff Receive an Adverse Inference Charge at Trial for Spoliation of Evidence and Finding That Defendants Failed to Establish They Did Not Have Notice of the Defective or Dangerous Condition of their Elevator

Written by: Daniele DeZago, Esq.

Queens County Supreme Court Judge Maurice E. Muir issued an Order denying Defendants’ motions for summary judgment and granting Defendant Delta Elevator Inspection Corporations motion for spoliation of evidence to the extent of directing an adverse inference charge be given at trial with respect to the plaintiff’s missing high heeled shoes.

With regard to spoliation, the plaintiff was notified at her first deposition to not discard the high heeled shoes.  By the time the plaintiff presented for her second deposition she testified she donated the subject shoes, but provided photographs of “similar” shoes.  Despite having been instructed to preserve the shoes, and the plaintiff’s failure to do so, the Court found that dismissing the complaint for spoliation of evidence was too drastic and the appropriate remedy in this instance is an adverse inference charge at the time of trial, as the high heeled shoes in question were “relevant to the defendants’ ability to present their defense that the elevator did not malfunction when the plaintiff fell.”

The Court also found that the Defendants failed to establish they did not have notice of any defective or dangerous condition.  The Court found that the Defendants’ “evidentiary submissions of deposition testimony of all parties, were insufficient to eliminate all triable issues of fact as to whether they had actual or constructive notice of the allegedly malfunctioning elevator” and “failed to produce any records including inspection, service, motor room logs, incident reports or repair records demonstrating when it inspected the subject elevators,” even though the management company testified that there were no written records of complaints regarding the subject premises.  The Court also found that the Defendants submitted inadmissible evidence in support of their motion including a Workers’ Compensation Employee Claim Form and a Prehospital Care Summary Report, among other exhibits, and failed to explain a photograph that depicted the mis-leveled elevator.