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No Sanction for Automatic Destruction of Video Recordings of Accident Scene after 21 Days—Counsels’ Original Request for Video Recording at the Time of the Accident Was Complied With—Counsel Subsequently Asked for Six Hours of Recording Prior to the Accident—By the Time of that Request the Videotape Had Been Automatically Destroyed

The First Department, over a dissent, determined Supreme Court properly denied plaintiff’s motion for sanctions based upon allegations of spoliation of evidence.  In response to plaintiff’s counsel’s initial request, 84 seconds of videotape depicting plaintiff’s slip and fall were preserved. Subsequently plaintiff’s attorney requested video of the six hours preceding the accident.  By that time, however, the tapes had been automatically erased:

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 … . 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 … . The burden is on the party requesting sanctions to make the requisite showing … . * * *

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 defendant’s self-serving statement concerning the contents of the destroyed tapes” … , 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.   Duluc v AC & L Food Corp, 2014 NY Slip Op 05243, 1st Dept 7-10-14

 

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