Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-13045, (Index No. 723063/20)

Cheryl E. Chambers, J.P.

Deborah A. Dowling

Lillian Wan

Lourdes M. Ventura, JJ.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Karina E. Alomar, J.), dated October 23, 2024. The order, insofar as appealed from, upon reargument, in effect, vacated so much of an order of the same court dated August 2, 2024, as granted the plaintiff's motion pursuant to CPLR 3126 to impose sanctions against the defendants for spoliation of evidence to the extent of precluding the defendants from offering any testimony, evidence, or defense in opposition to a motion for summary judgment, and thereupon granted the motion to the extent of precluding the defendants from offering any testimony, evidence, or defense as to their liability at trial.

ORDERED that the order dated October 23, 2024, is modified, on the law and in the exercise of discretion, by deleting the provision thereof, upon reargument, granting the plaintiff's motion pursuant to CPLR 3126 to impose sanctions against the defendants for spoliation of evidence to the extent of precluding the defendants from introducing any testimony, evidence, or defense as to their liability at trial, and substituting therefor a provision granting that motion to the extent of directing that an adverse inference charge be given against the defendants at the trial of this action with respect to surveillance video footage of the underlying incident; as so modified, the order dated October 23, 2024, is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action against the defendants to recover damages for personal injuries. The plaintiff alleged that on September 4, 2020, she slipped and fell on water at the bottom of a staircase between the fifth and sixth floors in an apartment building where she resided, which was owned and operated by the defendants, and that the defendants were negligent by failing to repair a leaking, defective, and dangerous roof and/or skylight on the premises. The central disputes between the parties are whether the water condition was caused by a recurring leak or by an emergent broken skylight and whether the defendants had actual or constructive notice of the condition.

The building was equipped with security surveillance cameras in the stairways, which captured three weeks of video before being automatically overwritten. On September 15, 2020, less [*2]than two weeks after the incident, the plaintiff's counsel served on the defendants a notice to "preserve and maintain any recording video that may have filmed th[e] incident as well as any records, photographs, video footage and/or reports that [the defendants] possess and which pertain to the incident in question."

On January 4, 2022, the plaintiff served upon the defendants a discovery demand for, among other things, the surveillance video footage from the fifth and sixth floors of the premises on the date of the incident and any video footage of the fifth and sixth floors for a period of one week prior to the date of the accident.

During discovery, the defendants produced a video that was one minute and seven seconds in length and which depicted the moments shortly after the plaintiff's fall. The premises's superintendent testified that he recorded the video on his cell phone from the building's surveillance footage on the day of the incident. The portion of the surveillance video that the superintendent recorded does not capture the moment of the fall itself or any time prior to the fall.

In a letter dated October 4, 2022, the plaintiff's counsel requested a complete copy of the video footage from the premises's surveillance cameras on the fifth floor and the sixth floor for at least the 24 hours prior to the segment of video provided. The defendants' counsel responded that the cell phone recording was the only video footage in the defendants' possession.

In April 2024, the plaintiff moved pursuant to CPLR 3126 to impose sanctions against the defendants for spoliation of evidence. The plaintiff sought to strike the defendants' answer and to establish liability in favor of the plaintiff and against the defendants or, in the alternative, to preclude the defendants from contesting their liability in the action, including on the issues of the condition that caused the plaintiff's fall and the defendants' notice of that condition. The defendants opposed the motion, contending that the loss of the complete video of the accident was not willful or contumacious and did not compromise the plaintiff's ability to prove her case and that the sanctions sought by the plaintiff were too harsh.

In an order dated August 2, 2024, the Supreme Court, inter alia, granted the plaintiff's motion to the extent of precluding the defendants from offering any testimony, evidence, or defense in opposition to a motion for summary judgment.

The plaintiff then moved for leave to reargue her prior motion pursuant to CPLR 3126 to impose sanctions against the defendants for spoliation of evidence on the ground that the deadline for filing summary judgment motions had passed when the Supreme Court issued the order dated August 2, 2024. The defendants cross-moved for leave to reargue their opposition to the plaintiff's prior motion.

In an order dated October 23, 2024, the Supreme Court, among other things, upon reargument, in effect, vacated so much of the order dated August 2, 2024, as granted the plaintiff's prior motion pursuant to CPLR 3126 to impose sanctions against the defendants to the extent of precluding the defendants from offering any testimony, evidence, or defense in opposition to a motion for summary judgment, and thereupon granted the plaintiff's prior motion to the extent of precluding the defendants from offering any testimony, evidence, of defense as to their liability at trial. The defendants appeal.

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned" (Dagro Assoc. II, LLC v Chevron U.S.A., Inc., 206 AD3d 793, 794 [internal quotation marks omitted]; see CPLR 3126; Yi Jiang Pai v Nelson Senior Hous. Dev. Fund Corp., 232 AD3d 822, 826). "'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'" (LaRose v City of New York, 243 AD3d 775, 776, quoting Washington v Church & Nostrand [*3]Apparel Corp., 238 AD3d 1096, 1097-1098).

"'The Supreme Court has broad discretion in determining what, if any, sanction would be imposed for spoliation of evidence'" (Laporte v New York City Hous. Auth., 242 AD3d 1187, 1188, quoting Hudesman v Dawson Holding Co., 230 AD3d 744, 746). However, this Court may substitute its own discretion for that of the trial court (see U.S. Bank N.A. v Sirota, 189 AD3d 927, 929). "'The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of the evidence, and the degree of prejudice to the opposing party'" (Battle v Fulton Park Site 4 Houses, Inc., 245 AD3d 667, 669, quoting Watson v 518 Pa. Hous. Dev. Fund Corp., 160 AD3d 907, 909).

Here, the Supreme Court properly determined that an imposition of spoliation sanctions against the defendants was warranted, as the defendants had an obligation to preserve the subject surveillance videos and were at least negligent in failing to preserve them, and the destroyed evidence was relevant to the plaintiff's claim (see Gregorian v New York Life Ins. Co., 211 AD3d 706, 710; Mendez v La Guacatala, Inc., 95 AD3d 1084, 1085). However, the court improvidently exercised its discretion in precluding the defendants from presenting any testimony, evidence, or defense as to their liability at trial. Instead, under the circumstances, the court should have directed that an adverse inference charge be given against the defendants at trial with respect to the video surveillance footage of the incident (see Battle v Fulton Park Site 4 Houses, Inc., 245 AD3d 667; Gregorian v New York Life Ins. Co., 211 AD3d at 710; Eksarko v Associated Supermarket, 155 AD3d 826, 828).

The parties' remaining contentions need not be reached in light of our determination.

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

ENTER:

Darrell M. Joseph

Clerk of the Court