| Mendez v La Guacatala, Inc. |
| 2012 NY Slip Op 03815 [95 AD3d 1084] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Tommy B. Mendez, Respondent, v La Guacatala, Inc.,Doing Business as El Abuelo Gozon, et al., Appellants, et al.,Defendants. |
—[*1] Friedman Friedman Chiaravalloti & Giannini, New York, N.Y. (A. Joseph Giannini ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants La Guacatala, Inc.,doing business as El Abuelo Gozon, Ivan Duque, and Luis Laverde appeal from an order of theSupreme Court, Queens County (Butler, J.), dated May 12, 2011, which granted the plaintiff'smotion to strike their answer on the ground of spoliation of evidence and for summary judgmenton the issue of liability.
Ordered that the order is reversed, on the law and in the exercise of discretion, without costsor disbursements, that branch of the plaintiff's motion which was to strike the answer of thedefendants La Guacatala, Inc., doing business as El Abuelo Gozon, Ivan Duque, and LuisLaverde on the ground of spoliation of evidence is granted only to the extent of directing that anegative inference charge shall be issued at trial against those defendants with respect to a videosurveillance tape of the underlying incident, and the answer of those defendants is reinstated.
The plaintiff, who allegedly was assaulted by security staff at a bar owned by the defendantLa Guacatala, Inc., doing business as El Abuelo Gozon (hereinafter the defendant corporation),after a dispute about his bill, sent a letter through his counsel to the defendants five days after theincident, asking the defendant corporation to preserve a surveillance video from the date of theincident. The letter, written in English, informed the defendant corporation that the plaintiff hadretained an attorney to pursue, inter alia, assault and personal injury claims against the defendantcorporation and its agents, managers, and employees, that any recording or surveillance video ofthe incident should be preserved, and that failure to preserve the video could result in the courtruling in favor of the plaintiff.
During his deposition, the defendant Ivan Duque, the president of the defendant corporation,stated that he did not read much English, but had his children translate important mail for himand that, upon receipt of the letter asking for preservation of the surveillance video, he forwardedthe letter to his insurance company. Duque also testified that he did not review the [*2]surveillance video or make an effort to preserve it, as he did notunderstand the import of the letter from the plaintiff's counsel. As a result, the video wasautomatically erased 30 days after the underlying incident. The plaintiff moved to strike theanswer of the defendant corporation, Duque, and the defendant bar manager Luis Laverde(hereinafter collectively the defendants), and for summary judgment on the issue of liabilitybased upon the defendants' alleged spoliation of evidence. The Supreme Court granted themotion. The defendants appeal, and we reverse.
While the Supreme Court has broad discretion in determining sanctions for spoliation ofevidence (see Denoyelles vGallagher, 40 AD3d 1027 [2007]), the sanction of striking the defendants' answer wasoverly harsh under the circumstances. "The party requesting sanctions for spoliation has theburden of demonstrating that a litigant intentionally or negligently disposed of critical evidence,and 'fatally compromised [the movant's] ability to' " prove a claim or defense (Utica Mut. Ins. Co. v Berkoski Oil Co.,58 AD3d 717, 718 [2009], quoting Lawson v Aspen Ford, Inc., 15 AD3d 628, 629 [2005]). Here,while the Supreme Court properly determined that the plaintiff demonstrated that the defendantsintentionally or negligently disposed of the video, the plaintiff's ability to prove his case withoutthe video was not fatally compromised. Indeed, the plaintiff may testify at trial about the allegedassault by the defendants' employees. Thus, he is not left without means to prove his causes ofaction (see Barone v City of NewYork, 52 AD3d 630, 631 [2008]). Accordingly, the Supreme Court improvidentlyexercised its discretion in striking the defendants' answer and in awarding the plaintiff summaryjudgment on the issue of liability on that basis. Under the circumstances of this case, theappropriate sanction would have been to direct that a negative inference charge be issued at trialagainst the defendants with respect to the unavailable video surveillance tape (id.; see Molinari v Smith, 39 AD3d607 [2007]). Skelos, J.P., Florio, Belen and Sgroi, JJ., concur.