TOMASELLO v. 64 FRANKLIN INC (2007)

 Plaintiff commenced this action seeking damages for injuries he sustained when he slipped and fell on property leased by 64 Franklin, Inc., doing business as Soho Bar (defendant).   Plaintiff moved for, inter alia, sanctions based on defendant's loss of a surveillance videotape of defendant's premises taken at the time of the incident.   We agree with Supreme Court that a sanction was appropriate, but we conclude that the court abused its discretion in determining the issues of notice and negligence in favor of plaintiff against defendant and dismissing defendant's affirmative defense alleging culpable conduct on the part of plaintiff, and we therefore modify the order by vacating those sanctions.  “Striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence ‘deprive[s] the moving party of the ability to establish his or her defense or case’ ” (Enstrom v. Garden Place Hotel, 27 A.D.3d 1084, 1086, 811 N.Y.S.2d 263;  see Wetzler v. Sisters of Charity Hosp., 17 A.D.3d 1088, 1089-1090, 794 N.Y.S.2d 540, amended on other grounds 20 A.D.3d 944, 797 N.Y.S.2d 327).   Here, plaintiff does not contend, nor does the record reflect, that the loss of the surveillance videotape will prevent him from establishing a prima facie case of negligence.   Further, plaintiff will have the opportunity, if so advised, to depose the individuals who viewed the surveillance videotape in question.  “Under the circumstances, the court should have considered a less severe sanction, which we now provide” (Molinari v. Smith, 39 A.D.3d 607, 608, 834 N.Y.S.2d 269;  see Enstrom, 27 A.D.3d at 1087, 811 N.Y.S.2d 263;  see also Wetzler, 17 A.D.3d at 1090, 794 N.Y.S.2d 540;  Metropolitan N.Y. Coordinating Council on Jewish Poverty v. FGP Bush Term., 1 A.D.3d 168, 768 N.Y.S.2d 190).   We conclude that an adverse inference charge against defendant is an appropriate sanction for the spoliation of evidence, and we therefore further modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the sanctions imposed, reinstating the first affirmative defense of defendant 64 Franklin, Inc., doing business as Soho Bar, and granting plaintiff an adverse inference charge against that defendant and as modified the order is affirmed without costs.

MEMORANDUM: