N.Y.C. Housing Auth. v. Pro Quest Sec., Inc.

• Decision Date: 23 July 2013
• Citation: 970 N.Y.S.2d 21,108 A.D.3d 471,2013 N.Y. Slip Op. 05429
• Parties: NEW YORK CITY HOUSING AUTHORITY, Plaintiff–Appellant, v. PRO QUEST SECURITY, INC., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 471
970 N.Y.S.2d 21
2013 N.Y. Slip Op. 05429

NEW YORK CITY HOUSING AUTHORITY, Plaintiff–Appellant,
v.
PRO QUEST SECURITY, INC., et al., Defendants–Respondents.

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

July 23, 2013.

[970 N.Y.S.2d 22]

Kelly D. MacNeal, New York (Gil Nahmias of counsel), for appellant.

Kaufman Borgeest & Ryan, LLP, Valhalla (Adonaid C. Medina of counsel), for respondents.

GONZALEZ, P.J., TOM, SWEENY, RENWICK, RICHTER, JJ.

[970 N.Y.S.2d 23]

[108 A.D.3d 471]Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 7, 2011, which granted defendants' motion to dismiss the complaint for spoliation of evidence, unanimously reversed, on the law, without costs, to reinstate plaintiff's complaint and preclude plaintiff from entering the redacted video into evidence or eliciting testimony concerning its contents.

[108 A.D.3d 472]Plaintiff, New York City Housing Authority (NYCHA), brought this action against defendants, Pro Quest Security, Inc. (Pro Quest) and its employee Kuuba Saba, seeking damages resulting from a fire that occurred in the cafeteria of a building located at 90 Church Street, in Manhattan. At the time of the fire, plaintiff leased seven floors in the building, including the 6th floor, which contained the employee cafeteria. Pro Quest was employed by the landlord of the building to provide 24–hour security.

On February 1, 2007, at around 4 a.m., a fire began in the cafeteria. The fire was extinguished shortly thereafter, and the fire marshal arrived by 9 a.m. to conduct an investigation. In the Fire Incident Report, the fire marshal concluded that the fire began in the wastebasket in the cafeteria and that it “appeared to have [been] started by a careless discard of smoking materials” into the wastebasket. As part of the investigation, the fire marshal interviewed Saba, a security guard employed by Pro Quest, who was working the 12 a.m. to 8 a.m. shift. Saba stated that, although he was a smoker, he did not smoke in the cafeteria that day. The fire marshal marked the case as “closed NFA [not fully ascertained] accidental careless discard of smoking material.” Several hours after the fire, the wastebasket was disposed of by either the building management or its cleaning company, neither of which is a party to this action.

The day after the fire, Patrick O'Hagan, the Director of Security for NYCHA, reviewed the surveillance video of the 6th floor from around the time of the fire. O'Hagan edited the video footage, deleting camera views he considered unnecessary, because those portions of the video showed no one on the 6th floor at the relevant times. O'Hagan saved the images from several different cameras. The saved images showed three different men, one of whom O'Hagan asserts is Saba, walking around the 6th floor near the cafeteria between 2:38 and 4:59 a.m. the morning of the fire. Two weeks after the fire, O'Hagan gave this redacted video to the fire marshal.

In January 2008, NYCHA brought this action against defendants, seeking damages based on Saba's alleged negligence in contributing to the fire and Pro Quest's vicarious liability for Saba's negligence. During discovery, defendants requested the wastebasket and an explanation for why portions of the surveillance video were missing. In an order dated December 29, 2009, the court ordered NYCHA to produce the unredacted video. When NYCHA failed to do so, defendants moved to dismiss the action pursuant to CPLR 3126, claiming spoilation of evidence. The trial court granted defendants' motion and dismissed [108 A.D.3d 473]NYCHA's...