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Superstorm Sandy is not a Scapegoat: Spoliation and Surveillance Videos

September 12, 2013 • Posted By Tara Bhupathi • Complex Litigation

In Ware v. Atlantic Towers Apt. Corp. et al, 2013 N.Y. Slip. Op. 51177(U), Kings County Supreme Court’s Judge Battaglia struck a building owner and manager’s cross-claims against a third defendant, SLF, where the owner and manager failed to produce surveillance footage of the trip and fall accident claimed in the lawsuit, thus depriving SLF of key and incisive evidence in support of its defense.

Throughout written discovery and in depositions, the building owner and manager represented that it was not in possession of any surveillance footage of the alleged accident.  However, SLF’s witness testified that he watched the surveillance footage of plaintiff’s accident with a building’s night security guard a few days after the accident and spoke to the building’s property manager about the accident at which time the manager acknowledged that the woman seen falling would sue the building. Subsequently, the owner and manager prepared an incident report.

After SLF’s deposition, the owner and manager again denied possession of the subject video tape, this time stating that the video was destroyed by Superstorm Sandy.  The building owner and manager also submitted affidavits stating that the suit was initiated well after the tapes were records over, however, the affidavits failed to discredit that the building owner knew about the video and foresaw plaintiff’s suit within the thirty (30) days when the video was available.

Spoliation occurs when a party negligently or intentionally destroys key evidence, depriving the non-responsible party from being able to prove its claim or defense.  The doctrine allows for sanctions under CPLR 3126, including striking the pleadings of the responsible party.  The proponent of spoliation must prove (1) intentional or negligent disposal of critical evidence and (2) that the disposal fatally compromised the proponents’ ability to provide a claim or defense.  Notably, actual initiation of an action is not required under the doctrine; mere notice that the evidence might be needed for future litigation is sufficient.

SLF argued that since plaintiff testified that she tripped over a lip or bump on the ground in the main lobby floor, the surveillance video would be the only evidence that could have rebutted plaintiff’s testimony.  SLF’s witness testified that it seemed plaintiff fell or kneeled down due to her own physical condition, unrelated to any condition on the floor.  Under the Best Evidence Rule, SLF’s testimony would not be admissible. Accordingly, the court held, SLF sufficiently proved that it has been deprived of key and incisive evidence in support of its defense.

There are two (2) key lessons from Judge Battaglia’s holding: First, mere notice of a potential litigation, which may be months or years before a case is filed, should trigger preservation of all relevant evidence. Second, the failure to provide an adequate explanation for the failure to preserve evidence and providing belated, evasive and incomplete responses throughout discovery may lead to the striking of pleadings.