New York State Court of Claims

New York State Court of Claims
DIAZ v. THE STATE OF NEW YORK, # 2010-030-026, Claim No. 114384


State of New York not liable after bifurcated trial for slip and fall on spilled milk, and resulting injury to claimant. No adverse inference to be drawn from lack of videotape of scene. Cameras at Green Haven non-operational on day of incident. No showing of a deliberate failure to create videotape or other intentional misconduct. Claimant had other evidence (although such evidence was ultimately not credited).

Case information

UID: 2010-030-026
Claimant(s): RAYMOND DIAZ
Claimant short name: DIAZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114384
Motion number(s):
Cross-motion number(s):
Claimant's attorney: GARY E. DIVIS, ESQ.
Third-party defendant's attorney:
Signature date: August 26, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Raymond Diaz alleges in his claim that defendant's agents allowed a dangerous condition to exist at approximately 10:20 a.m. on August 4, 2007 outside his cell on the special housing unit [SHU] of Green Haven Correctional Facility [Green Haven], causing him to slip, fall and suffer injury. More specifically, claimant alleges that he was being escorted to the shower area with his hands handcuffed behind his back when he slipped on spilled milk that had been allowed to stay on the gallery floor for an unreasonable period of time. Trial on the issue of liability was held over a period of two (2) days on March 31, 2010 and April 1, 2010. This decision relates only to liability.

Mr. Diaz was housed in cell number 31 on 3-company in the SHU. [See Exhibit 2]. There are three "tanks"(1) on the company, comprised of three to five cells each. From each tank there is access to the gallery through one sliding gate. From the gallery, inmates are moved to other parts of the facility, including the shower area. Tank 2 is the middle tank of the three tanks. Cell number 31 is in the middle of tank 2. In order to get to the shower area, Mr. Diaz would be escorted out of his cell into tank 2, through the gate from the tank to the gallery, and proceed to the right, down the gallery, past the first tank, to the showers.

A procedure for escorting inmates was in place and familiar to claimant and the escorting officers. [See also Exhibits 5 and 6]. The inmate stands by the cell bars with his back to the tank. With officers outside the cell, the door is opened up, the inmate is handcuffed from behind, and taken out to the gallery from the tank through the sliding gate. One officer controls the inmate by walking slightly behind, with one hand on the chain linking the cuffs at all times while the inmate walks "against the bars," keeping the bars to his right as he walks toward the shower area. The second officer walks alongside the escorting officer, also behind the inmate (although claimant placed the second officer "in front, off to the side" when he described the process). Claimant estimated that with the cuffs on, he could move his arms one inch beyond his hips.

The floor material in SHU and along the gallery is a terrazzo-type floor - rather than a tile floor - comprised of marble chips mixed with concrete that is poured, leveled off, and polished. [Exhibit 9]. No testimony was elicited to show that such flooring is particularly slippery when wet. No wax or other polish is utilized when the gallery floors are mopped every evening by inmate porters. The gallery is between four and six feet wide. While no specific testimony was elicited concerning general debris or liquid on the floor on the morning in question (other than the subject puddle), there was testimony to the effect that inmates constantly threw out materials of various types - including liquids - from their cells onto the gallery, and that on a daily basis, inmates were escorted on wet gallery floors without incident.

Meals for inmates housed in SHU are brought in on "feed-up carts." Individual food trays on the carts are handed in to the inmate with the cover removed. At breakfast, inmates are given two cups of milk and a cup of coffee, all served in 8 oz. Styrofoam cups.

On August 4, 2007 the breakfast meal was brought in by Correction Officers Robert Morgante and Glenn Trombly on the feed-up cart between 7:15 and 7:45 a.m. Officer Morgante recalled spilling some milk at that time, which he said he cleaned up immediately as per his custom and as a matter of "common courtesy" in the hot, humid summer weather when spoiled milk might have made the non-air-conditioned area even more odoriferous than it already was. He explained that the officers generally would clean up a spill since tasking an inmate porter to do it would be more time-consuming and would only be warranted if the spill was "major." He recalled that the area in which he spilled the milk that morning was on the gallery in front of the middle tank, "roughly in between cell 31 and 30."

Mr. Diaz confirmed the general practice noted by Officer Morgante that the correction officers would clean up a spill. After his breakfast was served that morning, he heard Officer Morgante curse because he had dropped something, and saw the officer bend down to pick up two Styrofoam cups in the gallery area to the right of his cell. He testified that he did not, however, observe the officer clean up the spill or direct anyone else to clean it up. It remained there, according to Mr. Diaz, until he was escorted out of his cell for a shower at approximately 10:15 a.m.

Mr. Diaz described the spill as taking up between one-quarter to one-half the width of the gallery floor, as being between 22 and 26 inches in diameter and "too wide" to step over.

Officer John Crusie was the control officer for the escort, and Officer Trombly acted as the second officer. In direct testimony, Mr. Diaz indicated that Officer Crusie was holding the hand restraints as they exited his cell and the tank, and that claimant told the officer that there was a puddle on the floor and requested permission to walk around the puddle. He testified that Officer Crusie told him he could not walk around the puddle, but that he should, instead, "walk through it slowly." Additionally, Mr. Diaz said (as had the officers describing movement procedures) that the inmate is required to "walk along the bars," saying "if you don't walk along the bars it will be seen as an act of aggression." Wearing shower shoes (flip-flops) and proceeding as directed, with nothing in his hands and a towel around his neck, claimant said that as he walked through the milk puddle, he slipped and fell, and Correction Officer Crusie slipped and fell as well. Mr. Diaz said that he fell backwards, but did not fall onto any part of Officer Crusie's body.

On cross-examination, Mr. Diaz said that Officer Crusie told him to "step over" the puddle and walk slowly, but he chose to walk through it instead. He acknowledged that his legs and feet were not shackled in any way.

Correction Officer Crusie remembered that he was guiding claimant to the shower, holding the restraints as they walked, when Mr. Diaz "fell back onto [him]. Once that happened," he said, "I lost my stability and fell too." He testified that he did not recall Mr. Diaz saying anything about milk at the time, nor did he recall directing claimant to step over anything. Officer Crusie said that he did not slip on any type of liquid, and only fell himself because Mr. Diaz fell on him. The officer was examined at the hospital and returned to duty the same day. Officer Crusie wrote a memorandum about the incident that was not offered in evidence.

Officer Trombly testified that he helped Officer Morgante with the breakfast "feed-up," in addition to walking behind Officer Crusie and Mr. Diaz as the second officer more than two hours later. He confirmed that if there were spills generally - a routine occurrence - the officers would generally clean them up. He had helped Officer Morgante with feed-ups on SHU regularly, and noted that because Officer Morgante was "very particular," he, rather than Officer Trombly, would usually perform any spill cleaning.

Officer Trombly did not recall any particular spill on the morning of August 4, 2007 during breakfast. He said that between 7:45 a.m. and 10:00 a.m. there had been some movement on the gallery already, as shown in the logbook [see Exhibit 3], including inmates going out to the yard at approximately 8:20 a.m., and returning at approximately 10:00 a.m. He said that "showers were switched" at approximately 10:15 a.m., meaning four inmates or so would have gone to showers at about 10:00 a.m. and were taken back (or switched) at approximately 10:15 a.m. for four others. With regard to the offer of yard time to 3-company and 4-company at 8:00 a.m. noted on the log, the names of the inmates were blacked out for confidentiality purposes. He said that it was "possible" that no one from 3-company took the opportunity to go to the yard at 8:20 a.m., but it was unlikely, given the restrictive nature of SHU, whereby inmates are housed in their respective cells 23 hours a day.

With regard to the escort itself, Officer Trombly said when claimant turned right onto the gallery ("as the second officer I followed him out of the cell"), claimant then

"throws his feet up in the air and lands on the ground, taking the officer down with him, saying he slipped, he fell, he's hurt himself and now all the other inmates are calling out saying 'you gotta go for medical response', 'you're in the money.' When the inmate's hurt, you can't move him."

Officer Trombly further said claimant

"started to whimper, keeping his eyes closed, like he's pretending to cry (then would peek out his eye at us and keep crying) so we had to call a medical response to the SHU."

Officer Trombly also testified that claimant was not moved before medical personnel came, and was "not lying in a puddle of liquid." As he knelt by the two men who were down, the officer said there was no milk on the floor and there was no puddle near Mr. Diaz.

Prior to claimant's fall, Officer Trombly said he escorted people in the unit from breakfast until 10:00 a.m., and did not observe any puddle during that time, nor did anyone have any trouble traversing the area.

At first Officer Trombly thought he had not written a memorandum in connection with this incident, but when shown a memorandum dated August 18, 2007 he said it referred to the incident, since he did not recall any other alleged spilled-milk incident in August 2007. [Exhibit 13]. In the memorandum, Officer Trombly wrote: "on the above date there was no milk spilled on 3rd floor. Inmate Diaz . . . fell on his own." [See id.].

Officer Morgante "vaguely" remembered the August 4, 2007 incident involving claimant's fall. He remembered that at the time of claimant's fall "showers and yard were being run simultaneously, so I was obviously escorting some inmate somewhere." Officer Morgante was behind the trio of claimant, Officer Crusie and Officer Trombly. He saw claimant fall back on Officer Crusie and went over to "try and break the fall." They went "down against the bars" as he recalled it, with the officer "taking most of the weight from the inmate." At first, he "thought the inmate was assaulting the correction officer, but then [he] realized they were falling and tried to break their fall." He, too, thought the fall was staged. At the time of the fall, there were no liquids or cups on the floor of Tank 2, and he did not recall any milk on the gallery, saying no one was sent to clean up milk, and adding, "if there were anything I would do that myself." The 10:20 a.m. log note for the incident involving claimant states, "While being escorted off three company to the shower inmate Diaz . . . slipped and fell[,] medical response was called[,] watch commander notified." [Exhibit 3]. Medical personnel and Sergeant Coleman Wilson (now Lieutenant Wilson) are noted as arriving almost immediately, and Mr. Diaz was taken off the unit to the medical facility within minutes. [Id.].

Sergeant John Carter, who was the officer in charge at the SHU that morning, indicated that part of his duties involved reporting events to the watch commander, and said that he went directly to "SHU 3" when he was told that "an officer and an inmate had gone to the floor." When he arrived there, he saw claimant on the floor and observed a "liquid substance in a small area on the floor" but did not "believe [he] could say where with close to any accuracy." The watch commander's log records at 10:19 a.m. :

"Inmate DIAZ . . . was being escorted from cell 31 in SHU by Officer John Crusie to go to the shower. While coming off the company[,] the inmate slipped on an unknown liquid substance[,]taking the inmate to the floor. Officer J. Crusie went down with the Inmate as he was in control of the inmate when the [slippage] occurred[,] hurting his back." [Exhibit 3].

Claimant's emergency trip to Putnam Hospital is recorded therein at 12:25 p.m., as is Officer Crusie's trip to the hospital. [Id.].

Lieutenant Wilson testified that when he responded to the scene from his assignment as a sergeant with the medical unit, he

"saw a puddle of whitish, lightish, liquid, less than 6 inches big. Someone Mr. Diaz' size could walk over the puddle. The whiteness could have possibly been a reflection of the overhead lighting."

At trial, the witness was shown a typewritten note Mr. Diaz testified he had prepared and witnessed for Lieutenant Wilson's signature on October 9, 2007. [See Exhibit A]. Lieutenant Wilson indicated that he did not sign the document, and indeed had never seen the document until it was shown to him during his deposition. The note provides in pertinent part that claimant "slipped and fell on milk while . . . being escorted to the shower," and that "[Lieutenant] Wilson is signing this paper, that he was there and has knowledge of this incident when [claimant] slipped and fell on the milk . . ." [Id.].

Medical personnel testified concerning claimant's diabetic condition, his "hunger strike" and fluctuating blood sugar levels within days of his fall on August 4, 2007, referencing Mr. Diaz' ambulatory health record [AHR]. [See generally Exhibit 1].

Mr. Diaz asserted without any real contradiction by competent evidence that

"at 10:20 a.m. on August 4 my physical condition was normal, I didn't feel dizzy. I am familiar with my own symptoms when I have low blood sugar. I get shaky, I sweat, these are the two main symptoms. When I have high blood sugar, I get thirsty and urinate a lot. I did not feel either of those when I left the cell."

Additional witnesses testified concerning the operation and effectiveness of the video surveillance system in place in the gallery areas of Green Haven pursuant to a federal court stipulated order directing such surveillance as part of the resolution of a claim of routine assaultive conduct by correction officers against inmates. [See Exhibit 4]. Directions that all activity between inmates and personnel be conducted in designated areas, as well as such surveillance (if only by implication), were incorporated into facility regulations after the litigation. [Exhibit 5].

Claimant was aware of the location of the video cameras along the gallery, as were all correctional personnel who testified. Indeed, on August 5, 2007 - a day after the incident - Mr. Diaz wrote to the FOIL officer requesting that videotapes be preserved of the gallery area from "Sat., Aug. 4, 2007 from 7-AM - 11 AM" as well as the logbook entries for that time. [Exhibits 8 and D]. When Pauline Rabideau, the employee told to make a videotape of the material recorded on the digital recording system went to make the tape on August 12, 2007, she was unable to retrieve the material and create a videotape because of a malfunction of the hard drive of the system. Her note to that effect was written on claimant's August 5, 2007 FOIL letter [see Exhibit D] and recorded in the log for the system. [Exhibit C]. Claimant's FOIL request was thereafter denied and appealed, with the ultimate explanation that a denial by the records access officer was appropriate because a request for records involves records that actually exist, which was not the case here. [Exhibit 7].

Lieutenant Mark Tokarz confirmed that there had been periodic problems with the system which "included 60 hard drives recording approximately 100 cameras, 24 hours per day, 7 days per week." The cameras performed surveillance on all areas of the SHU except inside individual cells. This particular system was relatively new in August 2007, having been put in place in "late 2006 or early 2007" and was not yet owned by DOCS but rather being "tried out" and serviced by an outside vendor. Lieutenant Tokarz said that the "hard drives had a tendency to fail. When the hard drive corrupted, it would take the computer 12 to 24 hours to realize it was corrupted, it would reformat itself for an additional amount of time, and then you would lose the 30 days prior to when it put itself back on-line." Based on the notations on the log, even if the system had been functioning on August 4, 2007, by the time Ms. Rabideau attempted to retrieve the information on August 12, 2007, it was no longer functioning, and information could not be retrieved. The log entries reviewed record a problem when it occurs, that is then reported to the maintenance supervisor, who then calls in the vendor for repairs. [Exhibit C]. It is noted, however, that there are not many log entries of any problems with the entire system between the period from the first entry on May 23, 2007, and December 2008, and include errors in the time recorded by the clock. [Id.].

Lieutenant Tokarz said that the 2007 system has been replaced with one that better alerts personnel to a malfunction. He also said that whether any liquid would be visible on a videotape of the gallery would "depend on the size and scale of any liquid," pointing out that the usual use of the videotape was per its original intent to record interactions between correction officers and inmates, or disciplinary issues.

No testimony was elicited other than the foregoing with regard to the quality, clarity or resolution of any videotape that might have been made and its capability of showing the spill at issue.


As an initial matter, claimant's request that an adverse inference be drawn to the effect that a spill occurred when claimant said it did, of a size claimed by Mr. Diaz, and that the accident as described by claimant occurred, based upon the failure to produce a videotape of the incident of August 4, 2007, is hereby denied. Indeed, claimant concedes that the "typical" standards for an adverse inference to be drawn based upon an alleged spoliation of evidence have not been met, since he failed to show that the evidence actually existed [see Jean-Pierre v Touro Coll., 40 AD3d 819, 820 (2d Dept 2007)(2) ]. Moreover any right to object had likely been waived by the service and filing of a note of issue and certificate of readiness attesting to completion of discovery. See e.g. Melcher v City of New York, 38 AD3d 376, 377 (1st Dept 2007);(3) see also Kirchen v Marino, 16 AD3d 555, 556 (2d Dept 2005).(4)

Despite such shortcomings, the Court had ruled before trial that the effect of not having a videotape of the incident could only be seen at trial [see e.g. Quinn v City Univ. of N.Y., 43 AD3d 679, 680 (1st Dept 2007)], and directed that witnesses be produced to discuss the video monitoring system among other things. After carefully considering such testimony, as well as the other evidence and testimony before the Court, there has been no showing of any deliberate failure to create a videotape or other intentional misconduct, and a reasonable explanation for the lack of such a videotape has been offered and accepted.(5) More significantly, claimant was not prevented from establishing his claim because of a lack of this evidence, because there were multiple witnesses to the event as well as other evidence with which claimant could establish his claim if such testimony and evidence is credited.

Furthermore, as a matter of policy, the idea behind the maintenance of video surveillance in the correctional facility setting was not to buttress claims of negligence such as a typical slip and fall, but rather to serve as a deterrent to institutional violence against inmates. [Exhibit 4]. Given the nature of the cause of action asserted herein, and while it might have been helpful to view such evidence (assuming the resolution of the recording would actually show the surface area of the floor), it is not evidence necessary to establish Mr. Diaz' claim.

In terms of the substantive aspects of his claim, although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety. Its duty is to exercise "reasonable care under the circumstances" [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. To establish a prima facie case of negligence generally the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant's injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.

For premises liability, assuming that the State did not create the dangerous condition, a claimant must show that the defendant had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Of course, creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670 (1984). The State has a duty to "act as a reasonable [person] in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk." Miller v State of New York, 62 NY2d 506, 513 (1984); Preston v State of New York, 59 NY2d 997, 998 (1983). With respect to constructive notice, a "defect must be visible or apparent and it must exist for a sufficient length of time prior to the accident to permit [a defendant] to discover and remedy it . . . (citation omitted)." Gordon v American Museum of Natural History, supra at 837.

It is the claimant's burden to prove his case by a preponderance of the credible evidence. A large part of the resolution of this claim rests upon the relative credibility of the witnesses, and the weight of the evidence claimant presented to substantiate his claim. Resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept 1993), lv denied 82 NY2d 663 (1993); Newland v State of New York, 205 AD2d 1015 (3d Dept 1994). An important part of that role is observing the behavior and demeanor of witnesses as they testify, and assessing the internal consistency of their accounts.

" '[T]he fact-finder is not required to credit a particular fact testified to by one or even six witnesses,' but instead should assess the likelihood of a fact being true 'by the totality of circumstances surrounding the occurrence as well as by the ordinary laws that govern human conduct' (People v Collier, 85 Misc 2d 529, 553[-554] [NY Sup 1975])." Medina v State of New York, UID # 2007-028-010, Claim No. 106664, Motion No. M-71375 (Sise, P.J., March 2, 2007).

After carefully considering the evidence submitted and after having the unique opportunity to listen to the witnesses' testimony and observe their demeanor as they did so, and in considering the claimant's burden of proof, the Court finds that claimant has not established that the State of New York should be found responsible for this accident and any injury to claimant.

Claimant was a credible witness at times, and at other times seemed prone to exaggerate. The correction officers, too, were selectively credible. Unfortunately, it was the escorting officers who were most insistent that (essentially) not a drop of anything was on the gallery floor as they escorted the claimant to the shower, while other personnel testified and contemporaneously recorded in official records that there was indeed liquid on the floor, albeit not in the scope and scale dramatically testified to by claimant. What makes the assertions of the escorting officers unfortunate is that they suggest a lack of candor, in the face of the observations of other personnel contemporaneously recorded, and the observations of the claimant. Indeed, no immediately contemporaneous or sufficiently detailed memoranda appear to have been written by either Officer Crusie or Officer Trombly, despite the fact that claimant almost immediately started the rumblings of a lawsuit by requesting the log records and the videotapes, and was also taken to an outside hospital. This normally generates a flurry of memoranda.

Nonetheless, the puddle here was "readily observable 'by those employing the reasonable use of their senses . . . (citations omitted)' " [see Persing v City of New York, 300 AD2d 641, 642 (2d Dept 2002)], and, indeed, Mr. Diaz claims to have been more than aware of the spill and to have told his escorting officers that it was there (according to his testimony).

Correction Officer Morgante acknowledged that he spilled milk on the gallery area directly in front of claimant's cell while serving breakfast, but claims to have immediately cleaned it up. Correction Officer Trombly - with him at the time - denied that any milk was spilled at all.

After Mr. Diaz' slip and fall, the two sergeants immediately on the scene observed liquid on the floor, and it was noted in the watch commander's log that Mr. Diaz slipped on a liquid.

When Mr. Diaz was taken out of his cell for his shower, obviously some amount of liquid remained on the gallery floor. On this point, the Court credits claimant's testimony that at most 16 oz of liquid was spilled by Officer Morgante during the breakfast meal based upon Mr. Diaz' observation that the officer picked up two Styrofoam cups. The Court also credits Officer Morgante's testimony that he cleaned up the spill, but only to a degree, however, since Lieutenant Wilson testified that there was (at least) 6 inches of white liquid on the floor when he went to assist Officer Crusie and Mr. Diaz.

Even assuming that a 16 oz spill remained on the floor for two hours, and that it covered a wide area of the hallway already traversed by many persons without incident by the time claimant exited for the shower, the Court finds that under the circumstances here it did not constitute a dangerous condition for which the State of New York should be held liable in negligence.

The rigid routines of being kept in rear handcuffs at all times when being moved on the unit were familiar to Mr. Diaz, including the process of being escorted to the showers wearing flip-flops that common experience advises are not the most stable footwear, under the control of his escorting officers and under a mandate to walk on a particular portion of the gallery. The Court credits his uncontradicted assertions that he was not dizzy or otherwise impaired because of low blood sugar associated with his diabetes in the absence of any expert testimony to link the medical record notations witnesses testified about to any relevant impairment that morning. As to his hesitation about provoking a confrontation with an officer about the milk - a seemingly innocuous request if the colloquy is credited - he presented as a resourceful individual fully capable of asserting himself to the officers, who were familiar to him. Moreover, given the obvious nature of the puddle (even assuming that it was indeed of the two-foot size attested to by claimant) he was also capable of walking through it (as he chose to do by his own testimony) without slipping and falling, by employing the reasonable use of his senses. He simply did not take appropriate precautions given his familiarity with the gallery and his awareness of the alleged puddle of spilled milk.

As noted, others had traversed the area without incident, and the floor surface itself was not attested to as particularly slippery. Thus, for example, even while marble as a surface is generally thought to be slippery, that propensity alone is not sufficient to establish liability. [See e.g. Waiters v Northern Trust Co. of N.Y., 29 AD3d 325, 326 - 327 (1st Dept 2006); see also DeMartini v Trump 767 5th Ave., LLC, 41 AD3d 181 (1st Dept 2007)].

Accordingly, while it is unfortunate that claimant fell and injured himself, the mere fact of such accident cannot alone establish the defendant's liability.

Based on the foregoing, defendant's motion to dismiss, upon which decision was reserved at trial, is hereby granted and Claim Number 114384 is in all respects dismissed. All trial motions not otherwise disposed of or withdrawn are hereby denied.

Let judgment be entered accordingly.

August 26, 2010

White Plains, New York


Judge of the Court of Claims

1. All quotations are to trial notes or audio recordings unless otherwise indicated.

2. "A party seeking an adverse inference charge against an opponent who has failed to produce a document must make a prima facie showing that the document in question actually exists, that it is under the opponent's control, and that there is no reasonable explanation for failing to produce it . . . (citations omitted)."

3. "Plaintiff, however, waived her right to further disclosure when she filed her note of issue and certificate of readiness, which stated both that disclosure was complete and that there were no outstanding disclosure requests . . . (citations omitted). Plaintiff's remedy with regard to [defendant's] failure to respond to the demand was to make a motion pursuant to CPLR 3214 or 3216 before filing the note of issue and certificate of readiness, a course of action she chose not to take . . . (citation omitted)."

4. Noting that the party seeking a disclosure sanction must show that he has been deprived in some essential way from proving his case, the Court said: "The defendants failed to sustain their burden of demonstrating that they would be severely prejudiced by reason of the missing evidence in presentation of their defense to the plaintiff's claim." But cf. Lichtenstein v Fantastic Mdse. Corp., 46 AD3d 762 (2d Dept 2007).

5. Indeed, even in the absence of a reasonable explanation in a more typical spoliation case, what effect a deliberate destruction of existing evidence has on the proof should await determination at trial in the Court's discretion.