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DEFENDANTS DID NOT PRODUCE A SURVEILLANCE VIDEO DEPICTING PLAINTIFF’S ACCIDENT UNTIL AFTER PLAINTIFF’S DEPOSITION; DEFENDANTS ARE PRECLUDED FROM INTRODUCING THE VIDEO IN EVIDENCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s should have been precluded from introducing in evidence a surveillance video depicting plaintiff’s accident. Although the video had been explicitly demanded by plaintiff, defendants did not produce it until after plaintiff’s deposition, six months after the entry of the compliance order:

Supreme Court improvidently exercised its discretion in denying plaintiff’s motion seeking discovery sanctions. Plaintiff demonstrated that defendants acted willfully and contumaciously when they failed to turn over video footage of plaintiff’s accident … . Defendants failed to produce the video in response to repeated explicit demands and repeatedly denied the existence of any video of plaintiff’s accident. It was not until after plaintiff’s deposition on May 20, 2024 and during the June 27, 2024 deposition of defendants’ building manager that defendants revealed the existence of the video. While only six months elapsed from entry of the compliance order to the belated production of the video, it cannot be said that plaintiff was not prejudiced by the late production. Defendants should be sanctioned for their dilatory behavior in producing the surveillance video after plaintiff’s deposition had already taken place … .

Given the totality of the circumstances, Supreme Court should have granted the lesser sanction of preclusion … . Larue v 1201-31 Lafayette Ground Gowner LLC, 2025 NY Slip Op 06546, First Dept 11-25-25

Practice Point: Here there was an explicit demand for any video of plaintiff’s accident but defendants did not produce to video until after plaintiff’s deposition. Introduction of the video in evidence was precluded.

 

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