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A VIDEO OF AN ALLEGED ASSAULT BY DEFENDANT’S EMPLOYEES WAS EITHER NEGLIGENTLY OR WILLFULLY LOST; SUPREME COURT PROPERLY RULED DEFENDANTS COULD NOT INTRODUCE ANY EVIDENCE WHICH CONTRADICTED AN AFFIDAVIT DESCRIBING WHAT THE VIDEO DEPICTED (SECOND DEPT).

The Second Department determined the sanction imposed on defendants for spoliation of evidence was appropriate. Defendants did not preserve the video of an incident in which plaintiff was allegedly assaulted by employees of the NYC Department of Homeless Services (DHS). Plaintiff’s attorney had specifically requested that the video be preserved. The day after the incident the video was reviewed by a security who described the video in an affidavit. When the video was not produced by the defendants, Supreme Court ruled the defendants could not introduce any evidence which contradicted the affidavit describing the video:

“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” … . “A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence”… . “The Supreme Court has broad discretion to determine a sanction for the spoliation of evidence”  … .

Here, contrary to the defendants’ contention, the record demonstrates that the relevant video evidence was owned and controlled by DHS, that DHS possessed an obligation to preserve the evidence at the time that it was lost or destroyed, and that DHS negligently or wilfully failed to ensure its preservation … . Furthermore, under the circumstances of this case, the sanction imposed by the Supreme Court provided “proportionate relief” to the plaintiff and was not an improvident exercise of discretion … . Oppenheimer v City of New York, 2021 NY Slip Op 02401, Second Dept 4-21-21

 

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