DocketNumber： 12038 302417-10
Judges： Tom, Friedman, Sweeny, Freedman
Filed Date： 7/10/2014
Status： Precedential
Modified Date： 11/1/2024
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered March 29, 2013, which, in this slip-and-fall action, granted defendants’ motion for summary judgment dismissing the complaint, and denied plaintiffs cross motion to strike the answer or for other sanctions for spoliation of surveillance tapes, affirmed, without costs.
One week after plaintiff’s August 8, 2009 slip-and-fall accident on defendant’s premises, plaintiffs counsel sent a notice to defendant “to preserve any and all video recordings/ surveillance tapes/still photos of any nature that depict the subject slip and fall accident” on the date and time in question. This notice was received by Nilka Bermudez, defendant’s employee in charge of these recordings. After reviewing the tapes from all of the cameras, Bermudez preserved an 84-second portion of tape from one camera that depicted plaintiffs accident, starting from one minute preceding her fall. She downloaded this clip onto a CD-ROM and forwarded a copy to defendant’s insurance carrier.
Bermudez testified that in August 2009, defendant’s standard procedure regarding surveillance tapes was to send a copy of video footage of any accident to its insurance carrier, and that,
Six weeks after the first request, counsel expanded his demand to six hours of footage leading up to the accident, for all 32 cameras in the store.
After discovery was completed, defendants moved for summary judgment, arguing that they did not create or have actual notice of the condition that allegedly caused plaintiff to fall. Plaintiff opposed the motion and cross-moved to strike defendants’ answer for withholding and destroying relevant video footage, or, in the alternative, for an order directing that the issue of notice be resolved against defendants.
The motion court found that defendants met their prima facie burden to establish that they did not create or have actual notice of the condition upon which plaintiff allegedly fell and that plaintiff failed to raise a triable issue of fact as to constructive notice. Although not required to do so in light of its ruling on the summary judgment motion, the court addressed plaintiffs cross motion to strike defendants’ answer for spoliation of evidence. The court found that the destruction of the original surveillance video was not willful or contumacious or in violation of a court order. The court accepted Bermudez’s explanation regarding the loss of the tape, finding no reason to attribute bad faith to defendants. It also rejected plaintiff’s contention that defendants should have preserved six hours of footage from all 32 store cameras.
On a motion for spoliation sanctions, the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a “culpable state of mind,” which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party’s claim or defense (see VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [1st Dept 2012] [internal quotation marks omitted]; Ahroner v Israel Discount Bank of N.Y., 79 AD3d 481 [1st Dept 2010]). In deciding whether to impose sanctions, courts look to the extent
The motion court properly exercised its discretion in denying plaintiff’s motion for spoliation sanctions. Plaintiff’s initial demand for preservation of videotapes was limited to those that “depict the subject slip and fall accident that took place on the above referenced date, time and location.” The portion of the tape that was preserved complied with this demand.
We take no issue with the dissent’s contention that a property owner’s receipt of a notice to preserve records triggers certain obligations. The extent of the obligation is where we part company with our colleague.
While it is true that a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and “should not be compelled to accept defendant’s self-serving statement concerning the contents of the destroyed tapes” (Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 251 [1st Dept 2011]), this principle does not translate into an obligation on a defendant to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiffs request for them. That obligation would impose an unreasonable burden on property owners and lessees.
What is significant here is that plaintiffs counsel’s letter to Bermudez is dated August 14, 2009, approximately six days after the accident. The record discloses a letter from defendant’s insurance carrier to plaintiffs counsel dated one week later, August 21, acknowledging the claim and requesting further information. In response, on August 27, plaintiff’s counsel provided the carrier with some of the requested information and enclosed the August 14 letter demanding preservation of the videotape, reiterating its demand for production of same. There is no indication that, at this point, which was still within the 21-day window before the tapes were overwritten, counsel sought anything beyond what he originally asked for. It was only in a motion to strike defendant’s answer or compel production of discovery, returnable on September 25, that plaintiff asked for the first time for six hours of video preceding the slip and fall. By that point, the tapes either had been reused in the normal course of business and were no longer available, or had been discarded after the system broke down.
Nor can plaintiff accomplish by indirection what she failed to do directly in her response to defendant’s motion for summary judgment. The court correctly found that plaintiff did not raise a triable issue of fact with respect to defendant’s creation or notice of the alleged dangerous condition. The testimony of defendant’s employees regarding the practice and procedure of cleaning the store, as well as plaintiffs own testimony that she did not observe the condition of the floor before her fall supports the court’s conclusion.
Plaintiff argues that the “sweeping” motion of an employee’s foot over the floor in the area where plaintiff fell immediately after the fall, as shown on the portion of the tape that was preserved, demonstrates that something was on the floor, and the employee pushed it aside. She further argues that, had all the tapes been preserved, this fact would clearly have been demonstrated. However, this argument rests on mere speculation, since the testimony of that employee was unequivocal that she ran her foot over the floor in a sweeping motion after the accident to see if it was wet, and did not observe anything wet or slippery. To argue that the unpreserved tapes might potentially have shown a condition that caused plaintiff’s fall does not meet plaintiffs burden to show that defendant improperly destroyed the tape (see Robertson v New York City Hous. Auth., 58 AD3d 535, 536-537 [1st Dept 2009]).
The precedents cited by our dissenting colleague do not require a different result. In those cases, specific items were requested for specific electronic or video recordings of a specific area or regarding a specific incident. Nothing was preserved by those defendants despite being put on notice that this material would be relevant to either potential or pending litigation. That is not the situation here. Counsel requested preservation of videotape recordings “that depict the subject slip and fall accident.” That recording was preserved. While it may have been a better practice to preserve any footage of the area from any camera for a period before and after the accident, that was not the request made to defendants, and it would unfair to defendant to penalize it for not anticipating plaintiff’s additional requests.