Schecht v. Starbucks Corps.

Schecht v Starbucks Corps. 2024 NY Slip Op 31046(U) March 28, 2024 Supreme Court, New York County Docket Number: Index No. 158469/2019 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 158469/2019 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/28/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice ---------------------------------------------------X INDEX NO. 158469/2019 LESLIE SCHECHT, MOTION DATE 10/02/2023 Plaintiff, MOTION SEQ. NO. 003 -v- STARBUCKS CORPORATIONS, STARBUCKS COFFEE COMPANY, BPP PCV OWNER LLC,STUYVESANT DECISION + ORDER ON TOWN/PETER COOPER VILLAGE MOTION

Defendant. ------------------------ -----------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 79, 80, 81, 82, 83, 84,85, 86, 87, 88, 89, 91, 92,93, 94,103,104,107 were read on this motion to/for STRIKE PLEADINGS

Upon the foregoing documents, and after oral arguments, it is ordered that plaintiff's

motion seeking to strike defendants' answer, or alternative to preclude defendants from

contesting notice, is granted in accordance with the decision below.

In this personal injury action, plaintiff moves to strike defendants' answer for spoliation

of evidence, or to preclude. Plaintiff alleges that on September 27, 2016, she tripped and fell

inside of a Starbucks coffee shop near the cash register on a raised, defective tile. Plaintiff argues

that defendants were aware of the exact date, time, and location of plaintiffs accident as the

accident occurred inside of a Starbucks coffee shop where Starbucks employees were present,

immediately came to her aid, and filled out an incident report indicating the date and time of

plaintiff's accident. According to plaintiff, on October 5, 2016, plaintiff returned to the store to

request the accident report, advising defendants that she would "pursue this", which defendant's

representative conceded constitutes a claim such that the video surveillance should have been

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preserved. See Affirmation in Support, dated September 30, 2023, ill 9. Despite this, video

surveillance of plaintiffs accident was destroyed. It is undisputed that defendants failed to

preserve video of plaintiffs accident. It is further undisputed that defendants produced only the

video immediately following plaintiffs accident, the video starting when plaintiff had already

fallen and was on the floor. Defendants oppose and plaintiff replies.

"Under the common law doctrine of spoliation, a party may be sanctioned where it

negligently loses or intentionally destroys key evidence". Hegbeli v TJX Companies, Inc., 64

Misc3d 1202(A)(Sup Ct NY County 2019). citing McDonnell v Sandaro Realty, Inc., 165 AD3d

1090, I 094-1095 (2 nd Dep't 2018). "A party that seeks sanctions for spoliation of evidence must

show that the party having control over the evidence possessed an obligation to preserve it at the

time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the

destroyed evidence was relevant to the party's claim or defense such that the trier of fact could

find that the evidence would support that claim or defense". Pegasus Aviation L Inc. v Varig

Logistica, SA., 26 NY3d 543, 547 (2015).

Here, plaintiff has established that defendants knew of plaintiffs accident and had the

date and time of such accident. In fact, defendants' own incident report noted the time of the

accident at 11 :00am and ending at 12:30pm. Plaintiff further established that plaintiff spoke with

an employee of defendant Starbucks prior to the destruction of the video and that such employee

deemed plaintiffs notice as a claim. It is uncontroverted that defendants failed to preserve the

video despite knowing there would be a claim. In opposition, defendants argue that the instant

motion must be denied as defendants exhibited no willful or contumacious behavior, and that

plaintiff has not shown that defendant Starbucks willfully destroyed the video. Defendants argue

that video surveillance was preserved, however, the time of the preserved video was based upon

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a mistake in the time defendant allegedly believed the accident took place. According to

defendants, plaintiff took pictures of the alleged defect and can describe the accident and how

she fell such that plaintiff can still prosecute her case.

Despite defendants' arguments, it is undisputed that defendants were aware of the subject

accident and that plaintiff would be pursuing a claim but failed to preserve the video at the

correct time which was noted in defendants' own report. Furthermore, plaintiff correctly argues

that the destruction of the video has hindered plaintiffs ability to defend against defendants'

claims that plaintiff did not trip on the defect, but rather she just tripped on her own feet, as

argued in defendants' motion for summary judgment pending sub judice. In a recent decision, the

First Department held that "the footage from the period before plaintiffs slip and fall was crucial

to plaintiffs proof of notice. It would have shown the origin of the substance plaintiff allegedly

slipped on, and how long the condition existed." Wagman v Morgan Stanley Children's Hosp. of

NY Presbyterian, et. al., 220 AD3d 502, 503 (1 st Dep't 2023). Similarly, here, the evidence

which was destroyed was relevant to, and could have been used to support, plaintiffs claim, to

show notice of the alleged condition, and to defend against defendants' allegation that plaintiff

just tripped over her own feet. The Appellate Division has held that "if the moving party is still

able to establish or defend a case, then a sanction less severe than striking the pleadings of the

offending party is appropriate". Hegbeli, 64 Misc3d 1202(A), citing Peters v Hernandez, 142

AD3d 980, 981 (2 nd Dep't 2016). As such, plaintiffs motion is granted to the extent that

defendants are hereby precluded from contesting causation and liability in any substantive

motion and at trial.

Accordingly, it is

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ORDERED that plaintiffs motion is granted to the extent that defendants are precluded

from contesting causation and liability in any substantive motion and at trial; and it is further

ORDERED that the parties shall appear on April 3, 2024 at 9:30am, in room 422 of 60

Centre Street, New York, NY, for a settlement conference; and it is further

ORDERED that, within 30 days of entry, plaintiff shall serve upon all parties to this

action a copy of this decision and order, together with notice of entry.

This constitutes the Decision/Order of the Court.

3(28(2024 DATE ADAM SILVERA, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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