FERNANDEZ v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered January 6, 2025.  The order denied the plaintiff's motion pursuant to CPLR 3126 to impose sanctions against the defendant Jet Blue Airways Corporation for spoliation of evidence.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion pursuant to CPLR 3126 to impose sanctions against the defendant Jet Blue Airways Corporation for spoliation of evidence is granted to the extent of directing that an adverse inference charge be given against that defendant at trial with respect to unavailable video surveillance footage if the trier of fact determines that there was spoliation of evidence.

On July 18, 2021, the plaintiff allegedly was injured after she slipped and fell on a wet substance in an airline terminal operated by the defendant Jet Blue Airways Corporation (hereinafter Jet Blue), at which Jet Blue maintains a video surveillance system.  After the incident, the plaintiff sent a letter to Jet Blue dated July 30, 2021, requesting that it preserve video surveillance footage “that depicts the location of the accident and/or [the plaintiff]” on the date of the incident.  Jet Blue's legal department received this letter on August 19, 2021.

In November 2021, the plaintiff commenced this action against Jet Blue, among others, to recover damages for personal injuries.  After learning that Jet Blue had not preserved the video surveillance footage from the date of the incident, the plaintiff moved pursuant to CPLR 3126 to impose sanctions against Jet Blue for spoliation of evidence.  In support of her motion, the plaintiff submitted an affidavit from one of Jet Blue's employees that had been exchanged during discovery, in which the employee averred that video surveillance footage from the date of the incident had been automatically overwritten by the video surveillance system in place sometime between 25 and 45 days following the incident, and that the video surveillance footage had “most likely” already been overwritten as of August 19, 2021, which was 32 days after the incident.  In an order entered January 6, 2025, the Supreme Court denied the plaintiff's motion.  The plaintiff appeals.

“ ‘Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126’ ” (Gordon v. Field, 234 A.D.3d 823, 824, 226 N.Y.S.3d 267, quoting Van DeVeerdonk v. North Westchester Restorative Therapy & Nursing Ctr., 223 A.D.3d 702, 703, 204 N.Y.S.3d 132).  “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543, 547, 26 N.Y.S.3d 218, 46 N.E.3d 601 [internal quotation marks omitted];  see Battle v. Fulton Park Site 4 Houses, Inc., 245 A.D.3d 667, 247 N.Y.S.3d 252).  “A culpable state of mind for [the] purposes of a spoliation sanction includes ordinary negligence” (Gordon v. Field, 234 A.D.3d at 824, 226 N.Y.S.3d 267 [internal quotation marks omitted];  see SM v. Plainedge Union Free Sch. Dist., 162 A.D.3d 814, 818, 79 N.Y.S.3d 215).  “Courts ‘possess broad discretion to provide proportionate relief to a party deprived of lost or destroyed evidence, including the preclusion of proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action’ ” (Eksarko v. Associated Supermarket, 155 A.D.3d 826, 828–829, 63 N.Y.S.3d 723, quoting Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d at 551, 26 N.Y.S.3d 218, 46 N.E.3d 601).  “ ‘[A]dverse inference charges have been found to be appropriate even in situations where the evidence has been found to have been negligently destroyed’ ” (Dorman v. Luva of NY, LLC, 243 A.D.3d 632, 636, 246 N.Y.S.3d 135, quoting Eksarko v. Associated Supermarket, 155 A.D.3d at 829, 63 N.Y.S.3d 723).

Here, the plaintiff demonstrated that Jet Blue was on notice as of August 19, 2021, that it had an obligation to preserve the video surveillance footage (see De Abreu v. Syed Rests. Enters., Inc., 231 A.D.3d 1116, 1118, 221 N.Y.S.3d 605).  Moreover, the affidavit of Jet Blue's employee raised an issue of fact as to whether the video surveillance footage was destroyed before or after Jet Blue's obligation to preserve it arose on August 19, 2021.  Under these circumstances, a triable issue of fact exists as to whether spoliation of evidence occurred, which issue should be determined by the trier of fact (see May v. American Multi–Cinema, Inc., 191 A.D.3d 657, 659, 141 N.Y.S.3d 108;  Lilavois v. JP Morgan Chase & Co., 151 A.D.3d 711, 712, 54 N.Y.S.3d 664).  The appropriate sanction for any such spoliation of evidence would be an adverse inference charge against Jet Blue, as the destruction of any video surveillance footage of the incident did not deprive the plaintiff of the opportunity to prove her case (see May v. American Multi–Cinema, Inc., 191 A.D.3d at 659, 141 N.Y.S.3d 108;  Pennachio v. Costco Wholesale Corp., 119 A.D.3d 662, 665, 990 N.Y.S.2d 54;  Mendez v. La Guacatala, Inc., 95 A.D.3d 1084, 1085, 944 N.Y.S.2d 313).

Accordingly, the Supreme Court should have granted the plaintiff's motion pursuant to CPLR 3126 to impose sanctions against Jet Blue for spoliation of evidence to the extent of directing that an adverse inference charge be given against Jet Blue at trial with respect to the unavailable video surveillance footage if the trier of fact determines that there was spoliation of evidence.

The plaintiff's remaining contention is without merit.

CHAMBERS, J.P., DOWLING, WAN and VENTURA, JJ., concur.