THE DESTRUCTION OF VIDEO EVIDENCE OF THE SLIP AND FALL WARRANTED A SANCTION; HOWEVER, IT WAS AN ABUSE OF DISCRETION TO PRECLUDE THE DEFENSE FROM PRESENTING ANY EVIDENCE RE: LIABILITY; AN ADVERSE INFERENCE CHARGE WITH RESPECT TO THE VIDEO EVIDENCE IS AN APPROPRIATE SANCTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the appropriate sanction for the destruction of the video which depicted the slip and fall was an adverse inference charge with respect to the video evidence, not the preclusion of all defense evidence re: liability:

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. * * *

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 … . 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 … . Alvarez v 100-10 67th Rd. Condominium, 2026 NY Slip Op 05261, Second Dept 9-16-26

Practice Point: Here video evidence of the slip and fall was destroyed warranting a sanction. Preclusion of all defense evidence re: liability was an abuse of discretion. An adverse inference jury instruction was appropriate.