On July 27, 2023, the Supreme Court of New York, Bronx County, in Fata v. Heskel’s Riverdale LLC, an action for damages resulting from a trip and fall in a parking garage, issued a decision on a plaintiff’s motion to strike defendant’s answer based on an alleged spoliation of evidence. The defendant cross-moved for summary judgment claiming the plaintiff did not have the ability to establish causation because the plaintiff had memory loss following the incident. The plaintiff could not adequately remember the incident because of his injuries and resulting brain surgery from his fall. It was discovered that there were operable surveillance cameras that captured video of the plaintiff’s fall which was retrieved and reviewed by the defendant’s building superintendent. He subsequently failed to save the video recording, testifying that he thought it was unimportant and despite knowing that the recording would erase after three days.
In evaluating the decision, the Court considered a two prong test: (1) whether the destruction of evidence was willful, contumacious or in bad faith and (2) whether the loss of the evidence deprives the moving party of the ability to prosecute or defend their case. Here, the Court held that the lost video recording evidence was crucial to the plaintiff’s case and that the defendant acted willfully in destructing said video. The Court also found that the absence of the surveillance video fatally compromised the plaintiff’s case, and left him without means to prove his claims. The Court pointed out that this is an example of a rare circumstance where the more common adverse inference sanction was insufficient to cure the prejudice against the plaintiff. Accordingly, the Court ordered that the defendant’s answer be stricken, that the plaintiff’s motion to strike based on spoliation of evidence be granted, that the defendant’s cross-motion for summary judgment be denied, and that judgment on the issue of liability in favor of the plaintiff be granted.
Thank you to Arianna Arca for her contribution to this article. Should you have any questions, contact John Diffley.