Duluc v. Ac & L Food Corp.

• Decision Date: 10 July 2014
• Parties: Mayra DULUC, Plaintiff–Appellant, v. AC & L FOOD CORP., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 450
990 N.Y.S.2d 24
2014 N.Y. Slip Op. 05243

Mayra DULUC, Plaintiff–Appellant,
v.
AC & L FOOD CORP., et al., Defendants–Respondents.

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

July 10, 2014.

[990 N.Y.S.2d 25]

Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant.

LeClair Ryan, P.C., New York (Michael J. Case of counsel), for respondents.

TOM, J.P., FRIEDMAN, SWEENY, SAXE, FREEDMAN, JJ.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered March 29, 2013, which, in this slip-and-fall action, granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion to strike the answer or for other sanctions for spoliation of surveillance tapes, affirmed, without costs.

One week after plaintiff's August 8, 2009 slip-and-fall accident on defendant's premises, plaintiff's counsel sent a notice to defendant “to preserve any and all video recordings/surveillance tapes/still photos of any nature that depict the subject slip and fall accident” on the date and time in question. This notice was received by Nilka Bermudez, defendant's employee in charge of these recordings. After reviewing the tapes from all of the cameras, Bermudez preserved an 84–second portion of tape from one camera that depicted plaintiff's accident, starting from one minute preceding her fall. She downloaded this clip onto a CD–ROM and forwarded a copy to defendant's insurance carrier.

Bermudez testified that in August 2009, defendant's standard procedure regarding surveillance tapes was to send a copy of video footage of any accident to its insurance carrier, and that, after a search of all cameras, the 84–second portion of the one camera tape was found to be the only footage depicting the accident. She further stated that the insurance carrier never told her what to send it regarding an accident and never asked her to send anything more than the short clip of the accident. Additionally, she testified that the

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computer system in use at that time automatically erased all footage every 21 days due to limited storage capacity. She also stated that the system later broke and was replaced. However, she could not remember when the replacement occurred, and stated that the old system had been discarded.

Six weeks after the first request, counsel expanded his demand to six hours of footage leading up to the accident, for all 32 cameras in the store.

After discovery was completed, defendants moved for summary judgment, arguing that they did not create or have actual notice of the condition that allegedly caused plaintiff to fall. Plaintiff opposed the motion and cross-moved to strike defendants' answer for withholding and destroying relevant video footage, or, in the alternative, for an order directing that the issue of notice be resolved against defendants.

The motion court found that defendants met their prima facie burden to establish that they did not create or have actual notice of the condition upon which plaintiff allegedly fell and that plaintiff failed to raise a triable issue of fact as to constructive notice. Although not required to do so in light of its ruling on the summary judgment motion, the court addressed plaintiff's cross motion to strike defendants' answer for spoilation of evidence. The court found that the destruction of the original surveillance video was not willful or contumacious or in violation of a court order. The court accepted Bermudez's explanation regarding the loss of the tape, finding no reason to attribute bad faith to defendants. It also rejected plaintiff's contention that defendants should have preserved six hours of footage from all 32 store cameras.

On a motion for spoliation sanctions, the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a “culpable state of mind,” which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense ( see VOOM HD Holdings LLC v. EchoStar Satellite, L.L.C., 93 A.D.3d 33, 45, 939 N.Y.S.2d 321 [1st Dept.2012] [internal quotation marks omitted]; Ahroner v. Israel Discount Bank of N.Y., 79 A.D.3d 481, 913 N.Y.S.2d 181 [1st Dept.2010] ). In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness ( see Standard Fire Ins. Co. v. Federal Pac. Elec. Co., 14 A.D.3d 213, 218, 786 N.Y.S.2d 41 [1st Dept.2004] ). The burden is on the party requesting sanctions to make the requisite showing ( see Mohammed v. Command Sec. Corp., 83 A.D.3d 605, 921 N.Y.S.2d 252 [1st Dept.2011],lv. denied17 N.Y.3d 708, 2011 WL 4030041 [2011] ).

The motion court properly exercised its discretion in denying plaintiff's motion for spoliation sanctions. Plaintiff's initial demand for preservation of video tapes was limited to those that “depict the subject slip and fall accident that took place on the above referenced date, time and location.” The portion of the tape that was preserved complied with this demand.

We take no issue with the dissent's contention that a property owner's receipt of a notice to preserve records triggers certain obligations. The extent of the obligation is where we part company with our colleague.

While it is true that a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and “should not be compelled to accept

[990 N.Y.S.2d 27]

defendant's self-serving statement concerning the contents of the destroyed tapes” ( Gogos v. Modell's Sporting Goods, Inc., 87 A.D.3d 248, 251, 926 N.Y.S.2d 53 [1st Dept.2011] ), this principle does not translate into an obligation on a defendant to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff's request for them. That obligation would impose an unreasonable burden on property owners and lessees.

What is significant here is that plaintiff's counsel's letter to Bermudez is dated August 14, 2009, approximately six days after the accident. The record discloses a letter from defendant's insurance carrier to plaintiff's counsel dated one...