LAM v. WEST NIGHTLIFE INC (2018)

Order, Supreme Court, New York County (Erika M. Edwards, J.), entered July 31, 2017, which denied plaintiff's motion to compel defendant to produce a witness with knowledge of the maintenance of its security surveillance video for a deposition, unanimously affirmed, without costs.

Plaintiff was injured when he slipped and fell while playing a game in defendant's bar.  In an affidavit, defendant's owner explained that, upon learning of the accident, she preserved video surveillance footage from the scene, commencing from approximately 8 minutes before the accident until about 20 minutes afterward, and that after 10 days, the rest of the video was automatically erased by the system.

The court providently exercised its discretion in denying the motion as plaintiff failed to establish that defendant's owner's deposition was material and necessary to the prosecution of the action, given, inter alia, plaintiff's own observations during his presence in the bar in the hours before the accident and the preserved surveillance footage (see CPLR 3101[a] ).  Moreover, there is no indication of any impropriety in connection with the destruction of the earlier footage (see Boyle v. City of New York, 291 A.D.2d 315, 738 N.Y.S.2d 324 [1st Dept. 2002] ), which defendant had no independent obligation to preserve (see Jackson v. Whitson's Food Corp., 130 A.D.3d 461, 13 N.Y.S.3d 71 [1st Dept. 2015];  Duluc v. AC & L Food Corp., 119 A.D.3d 450, 990 N.Y.S.2d 24 [1st Dept. 2014], lv denied 24 N.Y.3d 908, 2014 WL 5437040 [2014] ).