Moscinski v. Quadrum 38 LLC

Moscinski v Quadrum 38 LLC (2024 NY Slip Op 01781) Moscinski v Quadrum 38 LLC 2024 NY Slip Op 01781 Decided on April 02, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: April 02, 2024 Before: Oing, J.P., Friedman, Gesmer, Shulman, Rodriguez, JJ. Index No. 160030/19, 596073/19 Appeal No. 1950 Case No. 2022-05115 [*1]Pawel Moscinski, Respondent, v Quadrum 38 LLC et al., Appellants. (And a Third-Party Action.) Black Marjieh & Sanford LLP, Elmsford (Nicholas O. Paslow of counsel), for appellants. JodrÈ Brenecki, LLP, Brooklyn (Jordan A. JodrÈ of counsel), for respondent. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered October 7, 2022, which granted that portion of plaintiff's motion for summary judgment on his Labor Law § 200 claim, unanimously affirmed, without costs. Plaintiff demonstrated his entitlement to summary judgment based on his expert's opinion that the stand holding the fire extinguisher which fell on his foot was not constructed in a manner consistent with applicable codes, standards, and accepted construction site practices. In opposition, defendants could not raise an issue of fact as they were precluded from offering any evidence as to the condition of the fire extinguisher. Defendants' admitted failure to preserve the fire extinguisher constituted spoliation, and an adverse inference charge and preclusion against defendants was reasonable (see Gilchrist v City of New York, 104 AD3d 425, 425-426 [1st Dept 2013]; Strong v City of New York, 112 AD3d 15, 24 [1st Dept 2013]). Plaintiff was also not required to establish that defendants were the sole proximate cause of the accident (see Rodriguez v City of New York, 31 NY3d 312, 320 [2018]; Simmons v Bergh, 192 AD3d 547, 548 [1st Dept 2021]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 2, 2024