| Duluc v AC & L Food Corp. |
| 2014 NY Slip Op 05243 [119 AD3d 450] |
| July 10, 2014 |
| Appellate Division, First Department |
[*1]
| 1 Mayra Duluc, Appellant, v AC& L FoodCorp. et al., Respondents. |
Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel),for appellant.
LeClair Ryan, P.C., New York (Michael J. Case of counsel), for respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered March 29, 2013,which, in this slip-and-fall action, granted defendants' motion for summary judgmentdismissing the complaint, and denied plaintiff's cross motion to strike the answer or forother sanctions for spoliation of surveillance tapes, affirmed, without costs.
One week after plaintiff's August 8, 2009 slip-and-fall accident on defendant'spremises, plaintiff's counsel sent a notice to defendant "to preserve any and all videorecordings/surveillance tapes/still photos of any nature that depict the subject slip and fallaccident" 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 ofthe cameras, Bermudez preserved an 84-second portion of tape from one camera thatdepicted plaintiff's accident, starting from one minute preceding her fall. Shedownloaded this clip onto a CD-ROM and forwarded a copy to defendant's insurancecarrier.
Bermudez testified that in August 2009, defendant's standard procedure regardingsurveillance tapes was to send a copy of video footage of any accident to its insurancecarrier, and that, after a search of all cameras, the 84-second portion of the one cameratape was found to be the only footage depicting the accident. She further stated that theinsurance carrier never told her what to send it regarding an accident and never asked herto send anything more than the short clip of the accident. Additionally, she testified thatthe computer system in use at that time automatically erased all footage every 21 daysdue to limited storage capacity. She also stated that the system later broke and wasreplaced. However, she could not remember when the replacement occurred, and statedthat the old system had been discarded.
Six weeks after the first request, counsel expanded his demand to six hours offootage leading up to the accident, for all 32 cameras in the store.
After discovery was completed, defendants moved for summary judgment, arguingthat they did not create or have actual notice of the condition that allegedly causedplaintiff to fall. Plaintiff opposed the motion and cross-moved to strike defendants'answer for withholding and destroying relevant video footage, or, in the alternative, foran 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[*2]they did not create or have actual notice of thecondition upon which plaintiff allegedly fell and that plaintiff failed to raise a triableissue of fact as to constructive notice. Although not required to do so in light of its rulingon the summary judgment motion, the court addressed plaintiff's cross motion to strikedefendants' answer for spoliation of evidence. The court found that the destruction of theoriginal surveillance video was not willful or contumacious or in violation of a courtorder. The court accepted Bermudez's explanation regarding the loss of the tape, findingno reason to attribute bad faith to defendants. It also rejected plaintiff's contention thatdefendants 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) theparty with control over the evidence had an obligation to preserve it at the time it wasdestroyed; (2) the records were destroyed with a "culpable state of mind," which mayinclude ordinary negligence; and (3) the destroyed evidence was relevant to the movingparty's claim or defense (seeVOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [1stDept 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 thatthe spoliation of evidence may prejudice a party, and whether a particular sanction isnecessary as a matter of elementary fairness (see Standard Fire Ins. Co. v Federal Pac. Elec. Co., 14 AD3d213, 218 [1st Dept 2004]). The burden is on the party requesting sanctions to makethe requisite showing (seeMohammed v Command Sec. Corp., 83 AD3d 605 [1st Dept 2011], lvdenied 17 NY3d 708 [2011]).
The motion court properly exercised its discretion in denying plaintiff's motion forspoliation sanctions. Plaintiff's initial demand for preservation of videotapes was limitedto those that "depict the subject slip and fall accident that took place on the abovereferenced date, time and location." The portion of the tape that was preserved compliedwith this demand.
We take no issue with the dissent's contention that a property owner's receipt of anotice to preserve records triggers certain obligations. The extent of the obligation iswhere we part company with our colleague.
While it is true that a plaintiff is entitled to inspect tapes to determine whether thearea of an accident is depicted and "should not be compelled to accept defendant'sself-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 intoan obligation on a defendant to preserve hours of tapes indefinitely each time an incidentoccurs on its premises in anticipation of a plaintiff's request for them. That obligationwould impose an unreasonable burden on property owners and lessees.
What is significant here is that plaintiff's counsel's letter to Bermudez is datedAugust 14, 2009, approximately six days after the accident. The record discloses a letterfrom defendant's insurance carrier to plaintiff's 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 andenclosed the August 14 letter demanding preservation of the videotape, reiterating itsdemand for production of same. There is no indication that, at this point, which was stillwithin the 21-day window before the tapes were overwritten, counsel sought anythingbeyond what he originally asked for. It was only in a motion to strike defendant's answeror compel production of discovery, returnable on September 25, that plaintiff asked forthe first time for six hours of video preceding the slip and fall. By that point, the tapeseither had been reused in the normal course of business [*3]and were no longer available, or had been discarded afterthe system broke down.
The procedures employed by defendants with respect to preserving the tapes andcoordinating with the insurance carriers were less than stellar. Nevertheless, they did notrise to the level of sanctionable conduct, and an otherwise sufficient motion to dismissshould not be denied on the basis of sheer speculation that camera tapes from anotherangle might have revealed a cause for plaintiff's fall.
Nor can plaintiff accomplish by indirection what she failed to do directly in herresponse to defendant's motion for summary judgment. The court correctly found thatplaintiff did not raise a triable issue of fact with respect to defendant's creation or noticeof the alleged dangerous condition. The testimony of defendant's employees regardingthe practice and procedure of cleaning the store, as well as plaintiff's own testimony thatshe did not observe the condition of the floor before her fall supports the court'sconclusion.
Plaintiff argues that the "sweeping" motion of an employee's foot over the floor inthe area where plaintiff fell immediately after the fall, as shown on the portion of the tapethat was preserved, demonstrates that something was on the floor, and the employeepushed it aside. She further argues that, had all the tapes been preserved, this fact wouldclearly have been demonstrated. However, this argument rests on mere speculation, sincethe testimony of that employee was unequivocal that she ran her foot over the floor in asweeping motion after the accident to see if it was wet, and did not observe anything wetor slippery. To argue that the unpreserved tapes might potentially have shown a conditionthat caused plaintiff's fall does not meet plaintiff's burden to show that defendantimproperly destroyed the tape (see Robertson v New York City Hous. Auth., 58 AD3d535, 536-537 [1st Dept 2009]).
The precedents cited by our dissenting colleague do not require a different result. Inthose cases, specific items were requested for specific electronic or video recordings of aspecific area or regarding a specific incident. Nothing was preserved by those defendantsdespite being put on notice that this material would be relevant to either potential orpending litigation. That is not the situation here. Counsel requested preservation ofvideotape recordings "that depict the subject slip and fall accident." That recording waspreserved. While it may have been a better practice to preserve any footage of the areafrom any camera for a period before and after the accident, that was not the request madeto defendants, and it would unfair to defendant to penalize it for not anticipatingplaintiff's additional requests. Concur—Tom, J.P., Friedman, Sweeny andFreedman, JJ.
Saxe, J., dissents in a memorandum as follows: I would deny summary judgment andgrant plaintiff's cross motion for spoliation sanctions to the extent of directing that anadverse inference charge be given at trial with regard to the destroyed surveillancetapes.
Plaintiff slipped and fell while shopping at defendant's supermarket on August 8,2009, as she was approaching a cashier's station to pay for some tomatoes. Plaintiff'sattorneys sent a notice to defendant just one week after her accident, directing defendant"to preserve any and all video recordings/surveillance tapes/still photos of any nature thatdepict the subject slip and fall accident that took place on the above referenced date, timeand location[,] [and] not to reuse, erase [*4]and/ordestroy the aforesaid video recordings/surveillance tapes/still photos." The notice wasreceived by Nilka Bermudez, the employee in charge of those recordings, who, accordingto her deposition testimony, reviewed all the recordings made by the store's 32surveillance cameras that morning. Bermudez did not forward the notice to the store'sinsurer or attorney, and she preserved only an 84-second recording that, in its last 24seconds, showed plaintiff, from the back, approaching the cash registers and turning intoone cashier's lane, only to immediately slip and fall. The angle of the recording does notshow the portion of the floor on which plaintiff slipped.
Except for that 84-second clip, the remainder of the surveillance camera recordingsfrom that day were either recorded over after three weeks or discarded when the systembroke down and was replaced.
When defendant moved for summary judgment dismissing the complaint, plaintiffcross-moved to strike defendant's answer, contending that the destruction of the videorecordings other than the saved 84 seconds constituted spoliation of relevant evidence.The motion court rejected plaintiff's contention, finding that defendant's conduct as to thesurveillance footage was not wilful or contumacious or contrary to a court order, andaccordingly was not spoliation. I disagree.
New York's common-law doctrine of spoliation authorizes the imposition ofsanctions even when the failure to prevent the automatic overwriting of recordings wasnegligent rather than willful, as long as the alleged spoliator was on notice that thoserecordings would be relevant to anticipated litigation (see Strong v City of NewYork, 112 AD3d 15, 22 [2013]). In Strong, the plaintiff demonstratedthat the City had negligently failed to take active steps to halt the process ofautomatically deleting audio recordings, despite having notice of impending litigation forwhich a specific audio recording would be relevant (id.). Similarly, in Suazo v Linden Plaza Assoc.,L.P. (102 AD3d 570 [1st Dept 2013]), spoliation was found based on thedefendant's failure to preserve surveillance video for anticipated litigation despite noticethat litigation would probably ensue. And, in Gogos v Modell's Sporting Goods, Inc. (87 AD3d 248 [1stDept 2011]), an adverse inference charge was directed where the defendant destroyedstore surveillance tapes despite having been put on notice to preserve and producethem.
While severe sanctions such as striking pleadings or an order of preclusion may beexcessive where the spoliation was merely negligent, other, less severe sanctions such asan adverse inference charge may nevertheless be appropriate. The charge allows, butdoes not require the jury to infer that relevant evidence against the spoliator's interest waspresent on the erased recording, if the explanation for its destruction is not reasonable(see Gogos, 87 AD3d at 255; PJI 1:77.1).
Defendant suggests that based on the phrasing of plaintiff's notice, it was reasonablefor it to limit its retrieval and retention to only that portion of the footage that actuallyshowed plaintiff falling. However, defendant's obligation upon receipt of plaintiff'snotice was not so narrow.
This Court held in Gogos that "[p]laintiffs were entitled to inspect the tapesto determine for themselves whether the area of the accident was depicted. They shouldnot be compelled to accept defendant's self-serving statement concerning the contents ofthe destroyed tapes" (87 AD3d at 251). This reasonable rule is equally applicablehere.
The rule in Gogos does not require property owners to "preserve hours oftapes [*5]indefinitely each time an incident occurs on itspremises in anticipation of a plaintiff's request for them," as the majority protests. It does,however, impose a reasonable preservation obligation. After a person is injured anaccident, service of a notice to preserve recordings of that day's events imposes on theproperty owner an important obligation, and should be handled carefully. People whoslip and fall are often too injured or too flustered to carefully examine their surroundingsor to determine whether there were eyewitnesses to their accident. The images containedon any video recordings made on that day and around that time by surveillance camerasmay well be critical in assisting the injured person in establishing exactly what occurredand why. Since it is often standard procedure for these recordings to be overwritten orrecorded over in a matter of weeks or a few months, timely service of a notice on theproperty owner to preserve any such recordings must create an obligation on the part ofthat property owner to preserve all potentially relevant recordings. The property owner isnot free to extract from such recordings a short clip depicting that one moment at thatone location from only one angle and to assert that nothing else on its recordings isrelevant—especially when the preserved portion of the recording does not evendepict the condition of the floor on which the slip and fall occurred.
Nor may a defendant be permitted to avoid the obligations that arise through serviceof a notice to preserve by the expedient of failing to make its employee familiar withthose obligations. The question is not whether defendant's employee, Nilka Bermudez,acted in good faith when she reviewed all the surveillance footage and determined that,in her estimation, only the 84-second clip she saved needed to be preserved. The questionis what defendant should have done upon receipt of plaintiff's demand. If defendant,acting through its employee, failed to fulfill its legal obligations, its employee's lack ofknowledge renders defendant answerable for that failure.
There was more than one failure here for which defendant is answerable. The firstwas Bermudez's failure to retrieve and preserve other footage, from other angles,showing the condition of the floor where plaintiff fell, and activities in that area duringthe time preceding the accident. The seconds of footage Bermudez retrieved forpreservation did not even show the spot on the floor on which plaintiff slipped. SinceBermudez's deposition testimony acknowledged that other cameras, recording from otherangles, would have captured any spilled items on the floor of the store, there would havebeen footage from another surveillance camera that recorded the condition of the floorbefore and at the time of plaintiff's fall.
The second was the failure of defendant's insurer or its attorney, who are chargeablewith the knowledge that the store's legal obligation included not only the preservation ofthat single 84-second clip, but any recording by any of the store's surveillance camerasfrom the period leading up to plaintiff's fall showing the area of the floor on which shefell. We would expect counsel to recognize the applicability of the rule of Gogosrequiring preservation of tapes for inspection, and to ensure that defendant's employeeproperly fulfilled that obligation. The wording of plaintiff's demand for "any and allvideo recordings/surveillance tapes/still photos of any nature that depict the subject slipand fall accident" does not justify the employee's reading plaintiff's demand so narrowlyas to limit her task to copying only one clip of footage that recorded plaintiff falling.
Given the possibility that the jury could find that the destroyed recordings wouldhave supported plaintiff's claim of a hazardous condition on the floor that was presentlong enough to give defendant notice of it, I would deny defendant's motion for summaryjudgment dismissing the complaint. The evidence defendant relied on to establish thatthere was no hazardous [*6]condition on the area of thefloor on which plaintiff slipped did not establish as a matter of law a lack of a hazard or alack of notice.