Opinion
Index No. 154470/2020 Motion Seq. No. 003
03-11-2024
PAULA LEV, MARK LEV, Plaintiff, v. EATALY USA LLC, EATALY USA LLC D/B/A EATALY L.A., EATALY USA LLC D/B/A EATALY CENTURY CITY, LLC, EATALY USA LLC D/B/A EATALY NET USA, LLC, EATALY USA LLC D/B/A EATALY, INC., Defendant.
Unpublished Opinion
Motion Date 2/8/2024
PRESENT: HON. ADAM SILVERA, Justice.
DECISION + ORDER ON MOTION
ADAM SILVERA, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77 were read on this motion to/for STRIKE CASE FROM CALENDAR.
Upon the foregoing documents, and after oral arguments, it is ordered that plaintiff's motion seeking to strike defendants' answer is granted in accordance with the decision below.
In this personal injury action, plaintiff moves to strike defendants' answer for spoliation of evidence. Plaintiff argues that seven (7) days after the slip and fall at issue herein, plaintiff sent a letter to defendants requesting that defendants preserve the video of the accident, demanding the date and timeframe requested to be preserved. Specifically, plaintiff requested that defendants preserve video of the accident on December 17, 2019 between the times of 2:00pm through 4:30pm. It is undisputed that defendants failed to preserve video of such timeframe as noticed in plaintiffs preservation demand. It is further undisputed that defendants produced video of only 12-14 seconds prior to the accident, the time of the video starting at approximately 3:22:47pm rather than at 2:00pm as requested by plaintiff. Two video clips were produced by defendants, however, the view of the floor was obstructed in one of the videos. Defendants oppose and plaintiff replies.
"Under the common law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence". Hegbeli v TJX Companies, Inc., 64 Misc.3d 1202(A)(Sup Ct, NY County 2019), citing McDonnell v Sandaro Realty, Inc., 165 A.D.3d 1090, 1094-1095 (2nd Dep't 2018). "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". Pegasus Aviation I, Inc. v Varig Logistica, S.A., 26 N.Y.3d 543, 547 (2015).
Here, plaintiff has established that defendants have negligently lost or destroyed evidence in that it is uncontroverted that plaintiff sent to defendants a demand to preserve the video, defendants acknowledge receipt of such demand, and that defendants failed to preserve the video as requested. In opposition, defendants argue that their surveillance system automatically overwrites video footage after two weeks. Thus, defendants contend that it did not intentionally destroy evidence, rather the video was overwritten in its normal course of business. Moreover, defendants argue that their employees in the IT department at the time of the subject accident are no longer employed such that defendants do not have the evidence plaintiff is requesting.
Despite defendants' arguments, it is undisputed that defendants received plaintiff's demand to preserve the video footage 7 days following the subject accident, which would be 7 days prior to the footage having been automatically overwritten. Defendants have provided no explanation as to why the video footage was not preserved upon demand knowing that their surveillance system would automatically overwrite the footage requested. Furthermore, defendants have also failed to provide any explanation as to how they were able to produce the two videos provided which happened to capture the subject accident with just mere seconds prior.
In affirming the trial court's decision to strike a defendant's answer for failing to preserve a video, the Appellate Division, First Department, held that "[a]lthough it was demanded within days of plaintiffs slip and fall, defendants failed to preserve a video recording of its store that depicted the area of plaintiffs fall prior to it occurring. Instead, a store employee selectively edited the video to retain only that portion showing approximately 30 seconds prior to plaintiffs fall and the fall itself. Without the video recording, plaintiff may be unable to establish the origin of the liquid on the floor that she claims caused her to fall, and thus be unable to establish the requisite notice of the alleged condition". Davis v Pathmark, 162 A.D.3d 563, 563 (1st Dep't 2018). In a recent decision, the First Department held that "the footage from the period before plaintiffs slip and fall was crucial to plaintiffs proof of notice. It would have shown the origin of the substance plaintiff allegedly slipped on, and how long the condition existed." Wagman v Morgan Stanley Children's Hosp, of N.Y. Presbyterian, et. al., 220 A.D.3d 502, 503 (1st Dep't 2023). Similarly, here, the evidence which was destroyed was relevant to, and could have been used to support, plaintiffs claim and to show notice of the alleged condition. As such, plaintiffs motion is granted.
Accordingly, it is
ORDERED that plaintiff s motion is granted and defendants' answer is hereby stricken, and it is further
ORDERED that the parties shall appear on April 11, 2024 at 9:30am, in room 422 of 60 Centre Street, New York, NY, for a settlement conference; and it is further
ORDERED that the parties shall appear on June 12, 2024 at 9:30am, in room 422 of 60 Centre Street, New York, NY, for trial; and it is further
ORDERED that, within 30 days of entry, plaintiff shall serve upon all parties to this action a copy of this decision and order, together with notice of entry.
This constitutes the Decision/Order of the Court.