352 54 v. Claribelle Tineo; Sophia Montalvan; "Jane" "Doe", Respondent(s) (2026)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: NYSCEF Doc Nos. 117 — 126.

Respondent in this holdover proceeding moves (mot seq 07) pursuant to CPLR § 3126 for an order imposing specific discovery sanctions upon petitioner for spoliation of video evidence. Petitioner opposes.

The relevant procedural history is as follows. This holdover proceeding was commenced in 2016, upon allegation that respondent Claribelle Tineo violated the provision of the proprietary lease agreement which prohibits subletting of the premises without obtaining the consent of the HDFC in writing in advance, and that respondent has not been occupying the subject premises as her primary residence. A Notice to Cure the alleged violation dated October 30, 2015, and a Termination Notice preceded the petition.

It is undisputed the parties, via counsel, discussed security camera video footage of the common areas of the building. The video could prove highly probative of the nonprimary residence claim or the denial thereof depending on whether, and to what extent, it depicted respondent's comings and goings during the relevant time period.

By a stipulation dated October 27, 2016 the parties agreed that respondent would produce certain discovery for the period between January 2013 and July 2016, and that "respondent is allowed at her cost and expense to retrieve a copy of the video recordings retained by Petitioner of the floor on which Respondent's apartment is located in petitioner's building to the extent retained before and after December 11, 2015."

Following subsequent motion practice, by a Decision/Order dated May 29, 2020, Hon. Clifton A. Nembhard denied summary judgment, permitted partial amendment of the answer, ordered respondent to comply with prior discovery obligations, and sua sponte ordered production of video evidence by petitioner. The order was appealed. On March 19, 2024 Appellate Term, First Department issued a decision affirming and modifying the May 29, 2020 Decision/Order. Saliently to the present motion, that portion of the May 29, 2020 Decision/Order which directed petitioner to produce the video evidence was explicitly not reviewed by the Term, and remains in effect.

By a Decision/Order dated August 18, 2025, this Court granted petitioner's motion (mot seq 05) seeking to restore this proceeding to the Court's active calendar. The balance of the motion, including that portion seeking discovery sanctions, was denied, with the specific direction that should petitioner renew its request for discovery sanctions upon further noncompliance by respondent, petitioner "shall detail petitioner's compliance with its own disclosure obligations."

Respondent now moves for an order pursuant to CPLR § 3126 imposing the following discovery sanctions: (i) resolving any issues to which information not disclosed would be relevant against petitioner; (ii) prohibiting petitioner from eliciting any testimony or introducing any evidence relating to any time period for which video has been spoliated; (iii) drawing an inference that any discoverable material not produced by petitioner would not support petitioner's position; and further relief as the Court may deem just and proper.

Spoliation and Duty to Preserve Evidence

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) evidence was destroyed with a "culpable state of mind," which may encompass ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense (Duluc v AC & L Food Corp., 119 AD3d 450, 451 [2014]). In deciding whether to impose sanctions, courts evaluate to what extent spoliation of evidence may prejudice a party, and whether a particular sanction facilitates administration of "elementary fairness" (Id., at 451-452). The duty to preserve evidence arises once a party reasonably anticipates litigation (Ferrer v. Go NY Tours Inc., 228 AD3d 457, 458, 213 NYS3d 291 [1st Dept 2024], citing Fata v Heskel's Riverdale, LLC, 223 AD3d 520, 521, 203 NYS3d 550 [1st Dept 2024]).

Did Petitioner Have Duty to Preserve Evidence and did Petitioner Breach Same?

Here, petitioner was under an obligation to preserve video evidence as of at least October 30, 2015, the date petitioner issued its Notice to Cure based on respondent's alleged nonprimary residence, which was clearly done as a prerequisite to potential litigation. The potential importance of video security depicting comings and goings of the building's occupants to a nonprimary / illegal sublet proceeding is self-evident.

The Court declines to adopt petitioner's argument that because discovery is not automatic in summary eviction proceedings, no duty arose for petitioner to preserve evidence at that time. While here no preservation notice has been sent to petitioner in the way that would be customary in other types of lawsuits where disclosure occurs as of right, petitioner should have been on notice as to its obligation to preserve evidence probative of the central disputed facts of the proceeding (see Mangual v. New Life Sch., 245 AD3d 647, 648 [1st Dept 2026] (sanctions affirmed where spoliating party should have been sufficiently on notice of the obligation to preserve relevant evidence even in the absence of formal preservation notice, and over two years prior to commencement of litigation)). It is also clear that the potential existence of the security video evidence was initially raised by petitioner, in its own representations to respondent that this evidence would support petitioner's claims, belying petitioner's awareness of the importance of the video evidence in question.

While petitioner denies any bad faith in its failure to preserve the video evidence, ordinary negligence, as opposed to specific ill intent, is sufficient to trigger a finding of spoliation (VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45, 939 NYS2d 321 [1st Dept 2012]). However, whether the spoliation was driven by bad faith or plain negligence can be a factor in the assessment of appropriate sanction (Wagman v. Morgan Stanley Children's Hosp. of NY Presbyt., 220 AD3d 502, 502, 196 NYS3d 77 [1st Dept 2023]). Here, petitioner argues that it did not destroy evidence in bad faith. In fact, petitioner avers that the overwriting of security tapes was inadvertent and done by the third-party vendor which maintains the cameras. However, it is well settled that under such circumstances the party exerting control over the evidence via the vendor is required to take affirmative steps to prevent routine or scheduled destruction (Strong v. City of New York, 112 AD3d 15, 973 NYS2d 152 [1st Dept 2013]). Furthermore, it appears that some footage favorable to petitioner's claims has been preserved (see Tittel v. City of New York, 237 AD3d 416, 416, 230 NYS3d 99 [1st Dept 2025] (selective preservation by a party of portions of the evidence favorable to itself weighs in favor of sanction)).

The full extent of petitioner's breach of duty to preserve cannot be assessed without knowing exactly when the relevant evidence was destroyed. However, as petitioner itself acknowledged that no video evidence was preserved prior to December 31, 2015, at least the unpreserved video footage from October 30, 2015 and through July 2016 (the period outlined in the parties' October 27, 2016 stipulation) has been impermissibly spoliated.

Sanctions under CPLR § 3126

The nature and degree of sanction imposed pursuant to CPLR § 3126 is a matter of discretion for the trial court (Palmenta v. Columbia Univ., 266 AD2d 90, 91, 698 NYS2d 657 [1st Dept 1999]). The exercise of such discretion, particularly with respect to spoliation sanctions, is guided by the examination of the willfulness of the offending party; the prejudice resulting to the moving party from the spoliation; and other relevant factors (Wagman v. Morgan Stanley Children's Hosp. of NY Presbyt., 220 AD3d 502, 502, 196 NYS3d 77 [1st Dept 2023]).

Here, spoliation of the relevant video evidence by petitioner for the period commencing October 30, 2015 has been established, making sanctions appropriate. Respondent has not established, however, that spoliation occurred in bad faith rather than negligently. Neither has respondent established that the spoliated evidence is indispensable to her defense. It is quite common for nonprimary holdover proceedings to be litigated and tried without any security footage of the common areas of the building. Though highly relevant if available, such evidence is not indispensable to either party's claims and defenses in this proceeding. Both these factors mitigate heavily against drastic sanctions (see Tittel v. City of New York, 237 AD3d 416, 416, 230 NYS3d 99 [1st Dept 2025]).

Respondent seeks three specific sanctions for petitioner's spoliation of video evidence: (i) resolving any issues to which information not disclosed would be relevant against petitioner; (ii) prohibiting petitioner from eliciting any testimony or introducing any evidence relating to any time period for which video has been spoliated; (iii) drawing an inference that any discoverable material not produced by petitioner would not support petitioner's position; and further relief as the court may deem just and proper. The sanctions sought by respondent are highly broad and would be nearly dispositive of the proceeding, out of proportion to what would be appropriate under the circumstances. For instance, because the spoliated evidence is relevant to (though not dispositive of) respondent's occupancy of the subject premises, automatically resolving the issue of occupancy in favor of respondent, or precluding any petitioner testimony relating to the relevant time period could be highly dispositive of the central issues of the proceeding. However, considerations of elementary equity and fairness similarly dictate that petitioner should be precluded from gaining any advantage in the proceeding by virtue of permitting the spoliation.

Accordingly, petitioner is precluded from producing testimony as to any contents of the security video footage, or testimony of knowledge that was obtained by viewing the security footage; or any other testimony/evidence arising out of the security video. Similarly, petitioner is precluded from introducing those portions of the footage which remain available, as those potentially selective clips cannot be considered reliable taken out of the broader context of the destroyed body of video evidence. Nor should any benefit of having potentially curated the footage to be preserved inure to petitioner.

The court has considered the balance of the parties' arguments, and finds them unavailing.

It is ORDERED that respondent's motion is granted solely to the extent set forth above. This proceeding is adjourned to September 15, 2026 at 9:30am in Part C, Room 823 for settlement or trial. This constitutes the decision and order of this court.

Date: 7/27/26

Judge of the Civil Court

Yekaterina Blinova, J.