DUNN v. NEW LOUNGE 4324 LLC (2020)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered April 22, 2019, which denied the motion of defendant New Lounge 4324, LLC for summary judgment dismissing the complaint and granted plaintiff's cross motion for sanctions for spoliation to the extent of granting an adverse inference charge at trial, unanimously affirmed, without costs.

Defendant's summary judgment motion was properly denied.  Defendant's witness testified that plaintiff was attacked by a third party away from defendant's business, after being removed from defendant's club.  Plaintiff, however, testified that while inside defendant's club, defendant's bouncers punched him in the face, tackled him, and stomped on his foot, and then proceeded to punch him in the face again outside of the club.  Such conflicting versions of what occurred raise credibility issues precluding summary judgment (see Rawls v. Simon, 157 A.D.3d 418, 419, 66 N.Y.S.3d 126 [1st Dept. 2018] ).

The motion court properly refused to consider the mobile phone video submitted by defendant in support of the motion because it was not sufficiently authenticated (see National Ctr. for Crisis Mgt., Inc. v. Lerner, 91 A.D.3d 920, 921, 938 N.Y.S.2d 138 [2d Dept. 2012];  see generally Zegarelli v. Hughes, 3 N.Y.3d 64, 69, 781 N.Y.S.2d 488, 814 N.E.2d 795 [2004]).  In any event, the video, which does not show the entire incident, does not establish that plaintiff was not punched by defendant's bouncers at some time after the video was taken.

The motion court also properly granted plaintiff's cross motion for sanctions for spoliation and found that an adverse inference charge at trial is appropriate (see Strong v. City of New York, 112 A.D.3d 15, 22, 973 N.Y.S.2d 152 [1st Dept. 2013]).  Plaintiff established that defendant was on notice that its surveillance footage, which captured what happened inside of its club and a portion of the area immediately outside of its club, might be needed for future litigation.  After receiving such notice, defendant did not take steps to ensure that the video footage was preserved.