Plaintiff is entitled to an adverse-inference charge to the jury for defendant’s failure to preserve security video, which defendant had consented to a court order to preserve, but defendant’s answer and affirmative defenses would not be stricken.

Plaintiff slipped and fell on ice in defendant bank’s parking lot.  Before commencement of his action, plaintiff sought an order for pre-action disclosure and preservation of evidence. Defendant opposed the motion but represented to the motion judge that defendant had voluntarily preserved evidence including accident reports, photographs, and surveillance videotapes.  Defendant also consented to an order of preservation of those items.  During discovery after the action was commenced, plaintiff requested surveillance films related to the subject accident, and defendant responded that those materials had not been preserved.  (The dissenting opinion reveals that defendant’s business practice was to automatically overwrite the video footage after 90 days, and plaintiff’s motion and the resulting consent order were made more than a year after the accident).

The motion court granted plaintiff’s motion to strike defendant’s answer on the prong of CPLR 3126 that defendant had violated the court’s order of preservation.  The Fourth Department modified the sanction, holding under the alternate prong of CPLR 3126 that defendant’s failure to disclose was willful, but held that the motion court abused its discretion in striking defendant’s answer and affirmative defenses.  The Fourth Department instead gave plaintiff an adverse inference charge at trial with respect to the unavailable security surveillance footage.

The Hon. John M. Curran in dissent argued that willful failure to disclose was not raised below and further that the Fourth Department has excused alleged spoliation of evidence in other circumstances when the evidence was destroyed in good faith before litigation was pending, pursuant to normal business practices, and therefore could not have preserved it.  Justice Curran felt that defendant, however, had negligently destroyed the video because defendant was on notice of plaintiff’s claim before the tape was overwritten.  Justice Curran would have precluded defendant from introducing at trial evidence of the video’s content as part of its direct case.

Sarach v. M&T Bank Corp. 2016 NY Slip Op. 04820 (4th Dep’t June 17, 2016)

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