| New York City Hous. Auth. v Pro Quest Sec., Inc. |
| 2013 NY Slip Op 05429 [108 AD3d 471] |
| July 23, 2013 |
| Appellate Division, First Department |
| New York City Housing Authority,Appellant, v Pro Quest Security, Inc., et al.,Respondents. |
—[*1] Kaufman Borgeest & Ryan, LLP, Valhalla (Adonaid C. Medina of counsel), forrespondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), enteredSeptember 7, 2011, which granted defendants' motion to dismiss the complaint forspoliation of evidence, unanimously reversed, on the law, without costs, to reinstateplaintiff's complaint and preclude plaintiff from entering the redacted video into evidenceor eliciting testimony concerning its contents.
Plaintiff, New York City Housing Authority (NYCHA), brought this action againstdefendants, Pro Quest Security, Inc. (Pro Quest) and its employee Kuuba Saba, seekingdamages resulting from a fire that occurred in the cafeteria of a building located at 90Church Street, in Manhattan. At the time of the fire, plaintiff leased seven floors in thebuilding, including the 6th floor, which contained the employee cafeteria. Pro Quest wasemployed by the landlord of the building to provide 24-hour security.
On February 1, 2007, at around 4:00 a.m., a fire began in the cafeteria. The fire wasextinguished shortly thereafter, and the fire marshal arrived by 9:00 a.m. to conduct aninvestigation. In the fire incident report, the fire marshal concluded that the fire began inthe wastebasket in the cafeteria and that it "appeared to have [been] started by a carelessdiscard of smoking materials" into the wastebasket. As part of the investigation, the firemarshal interviewed Saba, a security guard employed by Pro Quest, who was workingthe 12:00 a.m. to 8:00 a.m. shift. Saba stated that, although he was a smoker, he did notsmoke in the cafeteria that day. The fire marshal marked the case as "closed NFA [notfully ascertained] accidental careless discard of smoking material." Several hours afterthe fire, the wastebasket was disposed of by either the building management or itscleaning company, neither of which is a party to this action.
The day after the fire, Patrick O'Hagan, the director of security for NYCHA,reviewed the surveillance video of the 6th floor from around the time of the fire.O'Hagan edited the video footage, deleting camera views he considered unnecessary,because those portions of the video showed no one on the 6th floor at the relevant times.O'Hagan saved the images from several different cameras. The saved images showedthree different men, one of whom O'Hagan asserts is Saba, walking around the 6th floornear the cafeteria between 2:38 and 4:59 a.m. the morning of the fire. Two weeks afterthe fire, O'Hagan gave this redacted video to the fire marshal.
In January 2008, NYCHA brought this action against defendants, seeking damagesbased [*2]on Saba's alleged negligence in contributing tothe fire and Pro Quest's vicarious liability for Saba's negligence. During discovery,defendants requested the wastebasket and an explanation for why portions of thesurveillance video were missing. In an order dated December 29, 2009, the court orderedNYCHA to produce the unredacted video. When NYCHA failed to do so, defendantsmoved to dismiss the action pursuant to CPLR 3126, claiming spoilation of evidence.The trial court granted defendants' motion and dismissed NYCHA's complaint,incorrectly concluding that NYCHA had willfully refused to comply with a court order.The video had actually been edited long before any court action began, and NYCHA didnot have an unredacted copy when the December 29 order was issued.
As a threshold issue, NYCHA unconvincingly argues that no sanction is appropriatebecause litigation was not pending when the video was edited. For a spoliation sanctionto be applicable, there need only be the "reasonable anticipation of litigation" (VOOM HD Holdings LLC vEchoStar Satellite L.L.C., 93 AD3d 33, 43 [1st Dept 2012] [internal quotationmarks omitted]; see alsoSamaroo v Bogopa Serv. Corp., 106 AD3d 713 [2d Dept 2013]). The day afterthe fire, O'Hagan was already viewing and editing the video, identifying images hethought would be relevant to determine how the fire started. These actions indicate thatNYCHA may have been contemplating litigation, or at least wanted to identify theculpable person, and therefore the records were destroyed with a "culpable state of mind"(Ahroner v Israel DiscountBank of N.Y., 79 AD3d 481, 482 [1st Dept 2010] [internal quotation marksomitted]; see Suazo v LindenPlaza Assoc., L.P., 102 AD3d 570, 571 [1st Dept 2013]). For the purposes of aspoliation sanction, "[a] culpable state of mind . . . includes ordinarynegligence" (VOOM HD Holdings LLC, 93 AD3d at 45 [internal quotationmarks omitted]; see Squitieri v City of New York, 248 AD2d 201, 203 [1st Dept1998]).
Although NYCHA should be sanctioned for the destruction of portions of thesurveillance video, the dismissal of the complaint was too harsh a remedy. Dismissing anaction is "usually not warranted unless the evidence is crucial and the spoliator's conductevinces some higher degree of culpability" (Russo v BMW of N. Am., LLC, 82 AD3d 643, 644 [1stDept 2011]). It is a "drastic sanction" and should only be done when a party hasdestroyed key evidence (Dauria v City of New York, 127 AD2d 459, 460 [1stDept 1987]; see Sage Realty Corp. v Proskauer Rose, 275 AD2d 11, 16 [1st Dept2000], lv dismissed 96 NY2d 937 [2001]).
The record does not support defendants' contention that dismissal is required becausethe unredacted video is key evidence without which they will be "substantiallyprejudiced" (Sage Realty, 275 AD2d at 17; see Metropolitan N.Y. Coordinating Council on Jewish Poverty vFGP Bush Term., 1 AD3d 168 [1st Dept 2003]). There are no cameras locatedinside the cafeteria, and no portion of the saved or deleted film would show exactly howthe fire started. Moreover, defendant Pro Quest is not without the means to defend itself,because it could depose the people who were present in the building at the time of thefire, including Saba (see ShanPalakawong v Lalli, 88 AD3d 541, 542 [1st Dept 2011] [denying motion todismiss because, although spoliation had occurred, there was other evidence available tothe moving party]; see alsoMendez v La Guacatala, Inc., 95 AD3d 1084, 1085 [2d Dept 2012]). As thesecurity company, Pro Quest should have records of which employees were on duty atthe time. Pro Quest also does not claim it has no access to information from other tenantswhose employees or visitors might have entered the building during the critical period.
Nevertheless, some sanction is warranted because it is uncontested that O'Haganpurposefully deleted the video images, and it would be unfair to Pro Quest to allowNYCHA to [*3]use the inculpatory images withoutdefendants having an opportunity to see all the camera views (see Palakawong,88 AD3d at 541-542 [in an action arising from a motor vehicle accident, it was anappropriate sanction to preclude the defendant from presenting evidence of the conditionof his motorcycle after the accident because he intentionally altered the motorcycle]).Defendants should not have to rely on NYCHA's statement that the deleted views areirrelevant, but should have been given an opportunity to view those images forthemselves. Because NYCHA deprived defendants of this opportunity, NYCHA shouldbe precluded from entering the redacted video into evidence or having a witness testify toits contents (see Baldwin vGerard Ave., LLC, 58 AD3d 484, 485 [1st Dept 2009] [sanction of preclusionwas "appropriately tailored to restore balance" where the plaintiff was prejudiced by thedefendant's failure to produce records of repairs completed on the stairwell where theplaintiff was allegedly injured]; see also Kirkland, 236 AD2d at 173).
Finally, no sanction should be imposed for plaintiff's failure to produce thewastebasket. The destruction of the wastebasket cannot be attributed to any willful ornegligent act on the part of NYCHA. Moreover, as neither party had the opportunity toexamine the wastebasket prior to it being removed, both parties are equally prejudiced byits absence (see Foley vConsolidated Edison Co. of N.Y., Inc., 84 AD3d 476, 479 [1st Dept 2011];Maliszewska v Potamkin N.Y. LP Mitsubishi Sterling, 281 AD2d 353 [1st Dept2001]; Cruz v Foremost Mach.Corp., 6 AD3d 484 [2d Dept 2004]).
We have considered the parties' remaining arguments and find them unavailing.Concur—Gonzalez, P.J., Tom, Sweeny, Renwick and Richter, JJ.