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STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE.

The Fourth Department, over an extensive dissent, determined striking defendant's answer in this slip and fall case was too severe a sanction for failing to preserve evidence, i.e., surveillance tapes:

… [W]e agree with plaintiff that a sanction was warranted inasmuch as defendant “wilfully fail[ed] to disclose information” that the court had ordered to be preserved (CPLR 3126). Nevertheless, we conclude that the court abused its discretion in striking defendant's answer and affirmative defenses. It is well established that “a less drastic sanction than dismissal of the responsible party's pleading may be imposed where[, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense” … . Indeed, we note that the record does not demonstrate that the plaintiff has been ” prejudicially bereft' ” of the means of prosecuting his action … . Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to the unavailable surveillance footage … . Sarach v M&T Bank Corp., 2016 NY Slip Op 04820, 4th Dept 6-17-16

NEGLIGENCE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/CIVIL PROCEDURE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/EVIDENCE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/SLIP AND FALL  (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/SURVEILLANCE TAPES (SLIP AND FALL, STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES)

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