Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/01/Temiz-v-TJX-Cos-Inc.pdf">Temiz v TJX Cos, Inc.,</a></em> the Appellate Division parsed through the language of a trial court’s adverse inference charge, lessening the scope of the ruling to address an inappropriate consequence of the ruling- a de facto summary judgment award.</p>
<p style="text-align: justify;">In <em>Temiz, </em>the plaintiff filed a personal injury lawsuit in New York County Supreme Court alleging that she fell as a result of a slippery substance on the floor.  At one point, the defendant had video footage of the area in question, however it was no longer available.  The plaintiff filed a motion to strike the defendant’s answer for spoliation of evidence from failing to preserve the video footage, and the trial court granted the motion to the extent of directing an adverse inference charge at trial- specifically, the Court held that the jury be charged as follows:</p>
<p style="text-align: justify;">"If the footage was preserved and produced, it would have shown that a slippery substance was on the floor long enough for the defendant to be aware of the condition and therefore the defendant had constructive notice of the slippery condition at the time plaintiff fell."</p>
<p style="text-align: justify;">The defendant appealed to the First Department Appellate Division, and upon review, the Appellate Division held this jury charge was inappropriate because it required, rather than permitted, the jury to draw an adverse inference, which is tantamount to a summary judgment liability award in favor of the plaintiff.  The Appellate Division relied upon a 2015 Court of Appeals case, <em>Pegasus Aviation I, Inc. v Varig Logistica S.A</em>.,26 NY3d 543 (2015), that holds, if an adverse jury charge is <em>permissive</em>, it will be held as appropriate and not akin to granting summary judgment.</p>
<p style="text-align: justify;">The Appellate Division directed that a new permissive adverse inference was required.</p>
<p style="text-align: justify;">Thanks to George Parpas for his contribution to this post.  Please contact <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.</p>