           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

306
CA 14-01091
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


NICOLE MANLEY AND DWAYNE MANLEY,
PLAINTIFFS-RESPONDENTS,

                     V                            MEMORANDUM AND ORDER

RASPBERRIES CAFÉ & CREAMERY, INC.,
DEFENDANT-APPELLANT.


COSTELLO COONEY & FEARON, PLLC, CAMILLUS (TERANCE V. WALSH OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BRINDISI, MURAD, BRINDISI & PEARLMAN, LLP, UTICA (ANTHONY A. MURAD OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County (Erin P.
Gall, J.), entered November 20, 2013. The order, insofar as appealed
from, granted those parts of the motion of plaintiffs seeking
preclusion and an adverse inference charge.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by plaintiff Nicole Manley when she was struck in
the head and face by a large umbrella from the patio seating area of
defendant’s restaurant. Defendant disposed of the umbrella and was
unable to locate the umbrella base, and plaintiffs moved for
spoliation sanctions. We conclude that Supreme Court properly granted
those parts of plaintiffs’ motion seeking an order precluding
defendant from presenting evidence concerning the condition of the
umbrella and base, as well as an adverse inference charge (see
generally Ortega v City of New York, 9 NY3d 69, 76). Contrary to
defendant’s contention, the court properly considered the extent that
the spoliation of the evidence prejudiced plaintiffs (see Puccia v
Farley, 261 AD2d 83, 85), and “[t]he sanction herein was
‘appropriately tailored to achieve a fair result’ ” (Gogos v Modell’s
Sporting Goods, Inc., 87 AD3d 248, 255).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
