ACOSTA ROMERO v. FONG (2024)

Order, Supreme Court, Bronx County (Raymond P. Fernandez, J.), entered January 12, 2024, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for spoliation sanctions, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted to the extent of imposing an adverse inference charge.

In this slip and fall action, the court improvidently exercised its discretion in denying plaintiff's motion for spoliation sanctions (see generally Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 876 N.E.2d 1189 [2007]).  Plaintiff demonstrated that, although admittedly aware of the importance of preserving surveillance video of plaintiff's accident in case of litigation, defendant failed to take affirmative steps to preserve the pertinent pre-accident and accident video footage, which was automatically deleted after 30 days.  Defendant's failure to do so constituted spoliation of evidence (see Macias v. ASAL Realty, LLC, 148 A.D.3d 622, 622, 50 N.Y.S.3d 364 [1st Dept. 2017]).

However, striking defendant's answer as a sanction is not warranted, as plaintiff failed to demonstrate that the missing video footage was the sole means by which she could prove her case (see Rossi v. Doka USA, Ltd., 181 A.D.3d 523, 525–526, 121 N.Y.S.3d 41 [1st Dept. 2020]).  Even without the pre-accident and accident footage, plaintiff can prove her case through, among other things, her own testimony, and the testimony of defendant's superintendent, who was responsible for maintaining the exterior staircase and removing any snow or ice (see Suazo v. Linden Plaza Assocs., L.P., 102 A.D.3d 570, 571, 958 N.Y.S.2d 389 [1st Dept. 2013]).  Accordingly, an adverse inference charge against defendant for her failure to preserve pre-accident and accident video is appropriate.