McKain v. Metropolitan Transportation Authority

505 —In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Schmidt, J.), dated June 30, 1999, which granted the defendants’ motion for summary judgment dismissing the complaint and denied their cross motion, in effect, to impose a sanction upon the defendants for the spoliation of evidence. Ordered that the order is affirmed, with costs. The Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. The defendants established a prima facie case showing entitlement to judgment in their favor as a matter of law. The record contained no evidence from which it could be concluded that the defendants had actual or constructive notice of the defective condition which allegedly caused the plaintiffs fall (see, Carlos v New Rochelle Mun. Hous. Auth., 262 AD2d 515; Schultz v New York Racing Assn., 253 AD2d 489; Paul v New York City Tr. Auth., 244 AD2d 322). The Supreme Court properly denied the plaintiffs’ cross motion to impose a sanction for the spoliation of evidence (see, Moore v Eyzenberg, 270 AD2d 468; Popfinger v Terminix Intl. Co. Ltd. Partnership, 251 AD2d 564). Bracken, J. P., O’Brien, Thompson and Florio, JJ., concur.