Gogos v. Modell's Sporting Goods, Inc.

McGuire, J. (dissenting).

I dissent. The motion court granted the motion “to the extent that plaintiff is entitled to a negative inference charge at trial with respect to what was on the subject videotape. The Trial Court shall issue a negative inference charge at trial regarding what was on the videotape.” Like the motion court, the majority improperly resolves disputed and critical issues of fact against the party opposing the motion.

The order directing that an adverse inference be charged assumes that the area in the store where plaintiff Elissavet Gogos fell was covered by a video camera.…