HIRSCHBERG v. WINTHROP UNIVERSITY HOSPITAL

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Supreme Court, Appellate Division, Second Department, New York.

Robert HIRSCHBERG, Appellant, v. WINTHROP–UNIVERSITY HOSPITAL, Respondent.

2018–07426

Decided: August 21, 2019

REINALDO E. RIVERA, J.P., MARK C. DILLON, LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, JJ. Rosenberg, Minc, Falkoff & Wolff, LLP, New York, N.Y. (Brooke Balterman of counsel), for appellant. Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristol of counsel), for respondent.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

On May 25, 2017, the plaintiff allegedly sustained personal injuries when he slipped and fell on a “wet floor” located in the entrance vestibule of the defendant's “Ambulatory Surgery Center.”  By letter dated June 8, 2017, the plaintiff notified the defendant “to keep and preserve any video recordings made by security, surveillance or other camera/recorders.”  Thereafter, in a notice of discovery and inspection, the plaintiff demanded a “[c]omplete copy of any security video tape and/or recording depicting [the] plaintiff's accident.”  The defendant provided the plaintiff with a copy of video footage depicting the plaintiff's accident.

By letter dated December 27, 2017, the plaintiff sought “security video for a larger time period, namely two hours prior to and including the accident time.”  In response, the defendant advised the plaintiff that it preserved and provided the video footage of the subject accident, and that “other footage” would have been automatically taped over after approximately 28 to 30 days.  The plaintiff moved pursuant to CPLR 3126 to strike the defendant's answer or, in the alternative, to impose other sanctions against the defendant for spoliation of the additional videotape footage.  The Supreme Court denied the plaintiff's motion, and the plaintiff appeals.

“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 NY3d 543, 547 [internal quotation marks omitted]; see Squillacioti v. Independent Group Home Living Program, Inc., 167 AD3d 673, 674; Richter v. BMW of N. Am., LLC, 166 AD3d 1029, 1030; Eksarko v. Associated Supermarket, 155 AD3d 826, 828; VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 AD3d 33, 45).  “A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence” (VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 AD3d at 45 [internal quotation marks omitted]; see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 554).  Where evidence was negligently destroyed, the party seeking sanctions must establish that the destroyed evidence was relevant to the party's claim or defense (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 547–548).  Moreover, the Supreme Court has broad discretion to determine a sanction for the spoliation of evidence (see id. at 551).

Here, we agree with the Supreme Court's denial of the plaintiff's motion pursuant to CPLR 3126 to strike the defendant's answer or, in the alternative, to impose other sanctions against the defendant for spoliation of the additional videotape footage.  The defendant complied with the plaintiff's demand to preserve the videotape footage depicting the plaintiff's accident.  Additionally, the plaintiff failed to show that the absence of videotape footage depicting “a larger time period, namely two hours prior to and including the accident time,” deprived him of his ability to prove his claim (see Watson v. 518 Pa. Hous. Dev. Fund Corp., 160 AD3d 907, 909–910).

RIVERA, J.P., DILLON, AUSTIN and HINDS–RADIX, JJ., concur.