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

343
CA 10-02088
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


DAVID A. BISHOP, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ASHLEY R. CURRY AND ROSEMARY CURRY,
DEFENDANTS-APPELLANTS.


LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (DANIEL J. GUARASCI OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

STAMM LAW FIRM, WILLIAMSVILLE (BRIAN G. STAMM OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered June 24, 2010 in a personal injury action. The
order denied the motion of defendants for summary judgment, or in the
alternative, for sanctions on the ground of spoliation of evidence.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he was struck by a motor vehicle driven by
Ashley R. Curry (defendant) upon exiting a bus and attempting to catch
another bus across the street. Defendants moved for summary judgment
dismissing the complaint on the ground that plaintiff’s own negligence
was the sole proximate cause of the accident and, in the alternative,
for sanctions based on plaintiff’s spoliation of evidence. Supreme
Court properly denied defendants’ motion.

     It is well established that, in moving for summary judgment, a
“party must affirmatively establish the merits of its cause of action
or defense and does not meet its burden by noting gaps in its
opponent’s proof” (Orcutt v American Linen Supply Co., 212 AD2d 979,
980). Here, defendants failed to meet their initial burden in support
of their motion inasmuch as they failed to establish as a matter of
law that defendant could not have seen plaintiff in time to stop or to
take evasive maneuvers to avoid hitting him (see generally Esposito v
Wright, 28 AD3d 1142). Also, defendant could not recall the speed at
which she was traveling before she observed plaintiff in her lane of
travel (see generally Veras v Vezza, 69 AD3d 611, 612). Therefore,
defendants “failed to submit evidence sufficient to establish, prima
facie, that the [plaintiff’s] alleged negligence was the sole
proximate cause of the accident, that [defendant] kept a proper
                                 -2-                           343
                                                         CA 10-02088

lookout, and that [her] alleged negligence, if any, did not contribute
to the happening of the accident” (Topalis v Zwolski, 76 AD3d 524,
525; see Veras, 69 AD3d 611; Ryan v Budget Rent a Car, 37 AD3d 698).

     We reject defendants’ alternative contention that the court erred
in denying their motion to the extent that it sought to strike the
complaint as a sanction for plaintiff’s alleged spoliation of
evidence, i.e., the loss of one of the accident scene photographs that
were marked during depositions. Of primary importance is the fact
that defendants provided no evidence that plaintiff was responsible
for the loss of that photograph. In any event, defendants also failed
to establish any prejudice arising from the loss of that photograph,
inasmuch as there are other photographs of the accident scene (see
generally Jennosa v Vermeer Mfg. Co., 64 AD3d 630, 631-632; Kirschen v
Marino, 16 AD3d 555, 555-556).




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
