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Step on Elevator Crack, Break High Heel Back (NY)

August 5, 2021

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<p style="text-align: justify;"><a href=""><em>Martha Suero-Miller v. Berken Building Co., L.L.C.</em>,</a> No. 717010/2020 (Qns. Cnty. Sup. Ct. Jul. 8, 2021) is a personal injury action, wherein plaintiff allegedly sustained damages in a trip-and-fall at her job, due to a mis-leveled elevator. Consequently, she sued the building owner, its managing agent, and the elevator service company hired to maintain the subject elevator. The instant decision resolved, <em>inter alia</em>, defendants’ summary judgment motions against plaintiff, including a request for dismissal of the complaint based on spoliation of evidence.</p>
<p style="text-align: justify;">The facts of <em>Suero-Miller</em> are not unique. Defendant Gabriel Management and Delta Elevator Inspection Corp. (“Elevator”) executed a service agreement, wherein Elevator was required to perform monthly elevator maintenance at the premises. On the date of the accident, plaintiff claimed her right heel was caught between the elevator and the third-floor because of a defective height differential. Plaintiff testified she took a photograph of the mis-leveled elevator immediately after her fall.</p>
<p style="text-align: justify;">Ultimately, defendants’ summary judgment motion was denied because, <em>inter alia</em>, they failed to show, prima facie, that they did not have constructive notice of the allegedly defective condition that caused the fall. The court held defendants’ evidentiary submissions were insufficient because none of the defendants produced any records (<em>e.g.</em>, inspection and service records, motor room log, incident report, repair records) demonstrating when the subject elevators were inspected. Defendants also failed to explain the photograph plaintiff produced of the mis-leveled elevator.</p>
<p style="text-align: justify;">With respect to defendants’ motion related to spoliation – during plaintiff’s first deposition – she was instructed not to throw away the high heel shoes she was wearing on the date of the incident. However – during plaintiff’s second deposition – she testified that she donated the high heel shoes. Although defendants failed to demonstrate that plaintiff’s conduct rose to the level of warranting dismissal of the complaint, defendants prevailed on convincing the court that the high heel shoes were relevant to their defense (<em>i.e.</em>, the elevator did not malfunction). Consequently, the court determined the appropriate remedy for spoliation in this circumstance was an adverse inference charge at the time of trial.</p>
<p style="text-align: justify;">From a defense perspective – the main takeaway from <em>Suero-Miller</em> is two-fold: (1) when premises liability duties are implicated, it is critical to keep accurate business records of all maintenance/repair records; and (2) when significant evidence is at issue, it is important to explicitly instruct plaintiff on the record to maintain such evidence if plaintiff admits to having such evidence in her/his possession.</p>
<p style="text-align: justify;">Thanks to John Amato for his contribution.  Please email <a href="">Colleen Hayes</a> with any questions.</p>


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