763 N.Y.S.2d 597 | N.Y. App. Div. | 2003
Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered April 4, 2002, which, in actions for personal injuries sustained when an elevator in an office building owned by defendants-appellants (the Building defendants) allegedly dropped 20 floors, granted plaintiffs motion in Action No. 2 for disclosure sanctions only to the extent of resolving in her favor the issue of whether the Building defendants had notice of the alleged defective condition that caused plaintiffs injuries, unanimously affirmed, without costs. Order, same court and Justice, entered June 28, 2002, which, in Action No.
The challenged resolving order (CPLR 3126 [1]) was an appropriate disclosure sanction for the Building defendants’ repeated and continuing failure to produce documents that they were ordered to produce in a decision of this Court on a previous appeal (278 AD2d 127, 129 [2000]), or to adequately explain their inability to do so (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Jackson v City of New York, 185 AD2d 768, 770 [1992]). However, absent a clear showing of spoliation, we reject plaintiffs argument that other, more severe sanctions should have been imposed.
The IAS court should have granted the Building defendants’ motions to dismiss the negligent infliction of emotional distress and punitive damages claims. The Building defendants owed a nondelegable duty to maintain the premises in a reasonably safe condition (see Sciolaro u Asch, 198 NY 77, 81-83 [1910]; Gallagher v St. Raymond’s R.C. Church, 21 NY2d 554, 557 [1968]). Under the applicable provisions of the New York City Building Code, the elevator cable defects involved in causing plaintiffs’ alleged injuries are defined as conditions “dangerous to human life and safety” (1 RCNY 11-02 [a]). That the Building defendants had notice of a dangerous condition does not satisfy the requirements for either a negligent infliction of emotional distress claim or a punitive damages remedy.
For conduct to serve as a basis for punitive damages, there