Category: CPLR § 3126

In an action to recover damages for personal injuries and wrongful
death, the defendant Alliance Elevator Company appeals, as limited by
its brief, from so much of an order of the Supreme Court, Kings County
(Schack, J.), dated October 10, 2008, as, in effect, denied that branch
of its motion which was pursuant to CPLR 3126 to unconditionally
preclude the plaintiffs from introducing evidence concerning item
numbers 7, 8, 9, 10, 11, 15, 16, 17, 18, 20, and 21 of its demand for a
bill of particulars.

ORDERED that the order is modified, on the law, by deleting the
provision thereof, in effect, denying that branch of the appellant's
motion which was pursuant to CPLR 3126 to unconditionally preclude the
plaintiffs from introducing evidence concerning item numbers 7, 10, 15,
16, 18, 20, and 21 of its demand for a bill of particulars, and
substituting therefor a provision granting that branch of the motion to
the extent of precluding the plaintiffs from introducing evidence
concerning those items of the demand unless the plaintiffs serve a
further bill of particulars with respect to those items; as so
modified, the order is affirmed insofar as appealed from, with costs to
the appellant, and the plaintiffs' time to serve a further bill of
particulars with respect to the demanded items is extended until 30
days after service upon them of a copy of this decision and order.

The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial (see Valentine v Armor Elevator Co., 155 AD2d 597; Ferrigno v General Motors [*2]Corp.,
134 AD2d 479). Here, the appellant was entitled to particulars
regarding the manner in which it allegedly was negligent and the
alleged defect of the subject elevator (see Ramondi v Paramount Fee, LP, 30 AD3d 396; Valentine v Armor Elevator Co.,
155 AD2d 597), as well as specification with respect to the plaintiffs'
claims concerning the creation of the allegedly dangerous condition (see Ramondi v Paramount Fee, LP,
30 AD3d at 397). Accordingly, unless the plaintiffs particularize the
specific acts of negligence which precipitated the purported defective
condition, the specific defect alleged, and the creation of the alleged
defective condition, as requested in items 7, 10, 15, 16, 18, 20, and
21 of the demand, they will be precluded from adducing any evidence at
trial with respect thereto (see Laukaitis v Ski Stop, 202 AD2d 554, 556; Ferrigno v General Motors Corp., 134 AD2d at 481).

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered
October 16, 2008, which, in an action by a tenant against its landlord
and managing agent for property damages and business interruption
caused by water infiltration, granted defendants' motion pursuant to
CPLR 3126 to dismiss plaintiff's complaint for noncompliance with
disclosure orders unless plaintiff provided certain discovery, mostly
related to its business interruption claim, by October 28, 2008,
unanimously modified, on the facts, to grant the motion unless, within
30 days after service of a copy of this order, plaintiff pays
defendants' attorney $5,000, and otherwise affirmed, with costs in
favor of defendants, payable by plaintiff.

Defendants acknowledge that plaintiff provided the discovery
responses by October 28, 2008, and do not assert prejudice as a result
of general delay, but argue that the action should have been dismissed
outright because of plaintiff's failure to explain its noncompliance
with prior court orders directing discovery. While the drastic relief
that defendants seek was properly denied for lack of a clear showing
that the noncompliance was willful or contumacious (see Delgado v City of New York, 47 AD3d 550 [2008]), plaintiff's inexcusable laxness "should not escape adverse consequences" (Figdor v City of New York, 33 AD3d 560, 561 [2006]; see Postel v New York Univ. Hosp., 262 AD2d 40, 42 [1999]), and we modify accordingly.

In addition, we agree with the appellant that the plaintiff's counsel
acted improperly at the plaintiff's deposition, among other things, by
making "speaking objections," correcting the plaintiff's testimony, and
directing the plaintiff on a number of occasions not to answer certain
questions. The questions were designed to elicit information which was
material and necessary to the appellant's defense of this action (see CPLR 3101[a]; Allen v Crowell-Collier Pub. Co., 21
NY2d 403, 406-407), and the directions not to answer them were not
otherwise authorized by 22 NYCRR 221.2. While the Supreme Court
properly denied that branch of the appellant's motion which was to
strike the complaint, as that remedy was too drastic a sanction (see Bjorke v Rubenstein, 38 AD3d 580,
571), under the circumstances, the alternative branch of the cross
motion, which was to compel the further deposition of the plaintiff
under the supervision of a referee (see CPLR 3104), should have been granted.

Plaintiff commenced this action seeking damages for injuries he
allegedly sustained when his foot became entangled in a net while
playing tennis at a facility owned and operated by defendants.
Plaintiff's attorney notified defendants that the net was important to
the litigation and requested that it be preserved, and plaintiff, as
well as defendants' insurer, photographed the net. Nevertheless,
defendants failed to preserve the net, and plaintiff moved to strike
defendants' answer and for partial summary judgment on liability in
favor of plaintiff as sanctions for spoliation of evidence. On the
record before us, we conclude that plaintiff established that
spoliation had occurred and thus that some sanction was warranted, but
we agree with defendants that Supreme Court abused its discretion in
granting plaintiff the relief sought (see Tomasello v 64 Franklin, Inc., 45 AD3d 1287, 1288; Enstrom v Garden Place Hotel, 27 AD3d 1084, 1085). We therefore modify the order accordingly.

"A party seeking a sanction pursuant to CPLR 3126 such as preclusion or
dismissal is required to demonstrate that a litigant, intentionally or
negligently, dispose[d] of crucial items of evidence . . . before the
adversary ha[d] an opportunity to inspect them' . .
. , thus depriving the party seeking a sanction of the means of
proving his claim or defense. The gravamen of this burden is a showing
of prejudice" (Kirschen v Marino, 16 AD3d 555,
555-556). Here, plaintiff is able to testify at trial that he fell when
his foot became entangled in the net and, indeed, he testified at his
deposition with respect to the cause of the accident. Furthermore, both
plaintiff and defendants photographed the holes in the net in question,
and those photographs are available to plaintiff to support his
contention that defendants had constructive notice of the [*2]alleged dangerous condition, i.e., holes in the net in which a person playing tennis could become entangled (see generally Morgan v State of New York,
90 NY2d 471, 488). Thus, we conclude that, "[u]nder all the relevant
circumstances, neither striking the answer nor precluding defendant[s]
from offering evidence at trial is warranted" (Quinn v City Univ. of N.Y., 43 AD3d 679,
680). Rather, we conclude that an adverse inference charge against
defendants is a more appropriate sanction. We therefore further modify
the order accordingly.

All the bold is mine.