FATA v. HESKEL RIVERDALE LLC (2024)

Judgment, Supreme Court, Bronx County (Raymond P. Fernandez, J.), entered September 14, 2023, in plaintiff's favor on the issue of liability, and bringing up for review an order, same court and Justice, entered July 31, 2023, which, to the extent appealed from, granted plaintiff's motion to strike defendant's answer on the grounds of spoliation of evidence and directed the Clerk to enter the aforesaid judgment, unanimously affirmed, without costs.  Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff was injured when he tripped on a metal drain plate in a parking garage located in defendant's building.  Within minutes of the accident, plaintiff called the building superintendent, who came to the scene.  On the same day, the superintendent retrieved the video of the accident from the garage surveillance system and watched it, but because he did not act to preserve the video, it was automatically erased three days later.  The superintendent also replaced the metal drain plate and disposed of it about a year after the accident even though he knew this action was pending.  The fall caused plaintiff to sustain trauma to his head, which resulted in a subdural hematoma, treated by craniotomy surgery, and memory loss, including as to the events surrounding his fall.

The record establishes that although defendant knew of plaintiff's injuries and was therefore on notice that the video surveillance footage might be needed for future litigation, defendant nevertheless failed to take affirmative steps to preserve the footage, which was then automatically erased (see Ellis v. JPMorgan Chase Bank, 190 A.D.3d 413, 414, 139 N.Y.S.3d 190 [1st Dept. 2021]).  In addition, the record shows that the building superintendent intentionally disposed of the metal drain cover while he had actual knowledge that this action was pending (see VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 46, 939 N.Y.S.2d 321 [1st Dept. 2012]).  These actions constitute spoliation of evidence (see Maiorano v. JPMorgan Chase & Co., 124 A.D.3d 536, 536, 998 N.Y.S.2d 629 [1st Dept. 2015]), and sanctions are appropriate because the spoliated evidence was relevant to plaintiff's claims against defendant (see VOOM HD Holdings, 93 A.D.3d at 46, 939 N.Y.S.2d 321).

Given the intentional disposal of the metal drain cover, defendant's failure to preserve the video surveillance footage, and plaintiff's resulting memory issues, the record demonstrates that defendant's “conduct evinces some higher degree of culpability” and that the spoliated evidence was “crucial” to plaintiff's action (Rossi v. Doka USA, Ltd., 181 A.D.3d 523, 526, 121 N.Y.S.3d 41 [1st Dept. 2020], quoting Russo v. BMW of N. Am., LLC, 82 A.D.3d 643, 644, 920 N.Y.S.2d 64 [1st Dept. 2011]).  Accordingly, Supreme Court providently exercised its discretion in striking defendant's answer rather than imposing the lesser sanction of an adverse inference charge (see Sage Realty Corp. v. Proskauer Rose, 275 A.D.2d 11, 17, 713 N.Y.S.2d 155 [1st Dept. 2000] [“courts have broad discretion that must not be disturbed absent clear abuse to impose sanctions under CPLR 3126 when a party intentionally, contumaciously or in bad faith ․ destroys evidence prior to an adversary's inspection”] [internal quotation marks omitted];  cf.  VOOM HD Holdings, 93 A.D.3d at 47, 939 N.Y.S.2d 321).