Opinion
570139/05.
Decided October 25, 2005.
Defendant Rite Aid Corporation appeals, as limited by its briefs, from that portion of an order of the Civil Court, Bronx County, entered December 22, 2004 (Howard H. Sherman, J.) which granted plaintiff's cross motion to the extent of striking Rite Aid's answer.
Order entered December 22, 2004 (Howard H. Sherman, J.) modified by reinstating defendant Rite Aid's answer and granting plaintiff's cross motion only to the extent of precluding said defendant from offering evidence at trial as to the content of the videotape; as modified, order affirmed, without costs.
PRESENT: McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ.
This is an action for false arrest, assault, and negligent hiring and retention. Defendant Davis, a security guard employed by Rite Aid, allegedly observed plaintiff in the act of shoplifting. Plaintiff was asked to return to the store, where an altercation ensued, resulting in Davis's arrest for assault. This action was commenced following Davis's plea to harassment, and Rite Aid raised several defenses including detention of the customer on reasonable grounds (General Business Law § 218). Prior to the inception of the litigation, the surveillance videotape that had captured plaintiff's actions giving rise to suspicion of shoplifting was "mislaid" by Rite Aid. Two of Rite Aid's employees had previously viewed the tape's contents, one of them concluding that there were reasonable grounds for plaintiff's detention.
The court struck Rite Aid's answer, finding it impossible for plaintiff to present her claims. This was an inappropriate sanction for spoliation of evidence ( Tommy Hilfiger, USA v. Commonwealth Truck, 300 AD2d 58, 60). There was no evidence of willful disposing of evidence ( Herbert v. City of New York, 12 AD3d 209) because no civil action was pending at the time the tape was reported lost. Moreover, the record supports the conclusion that the videotape contained only a portion of the events at issue ( see Marcano v. Calvary Hosp., 13 AD3d 109), and that its absence was not fatal to plaintiff's ability to present evidence on the majority of her claims ( see Jimenez v. Weiner, 8 AD3d 133). Under the circumstances, the appropriate sanction is to preclude Rite Aid from offering its employees' testimony as to what the videotape portrayed.
This constitutes the decision and order of the Court.