DECISION and ORDER Upon the foregoing papers the instant motion (001), pursuant to CPLR 3126, seeks to strike defendant’s answer for the alleged spoliation of evidence. Defendant cross-moves for an order pursuant to CPLR 3212 granting summary judgment. After review of the papers, together with the opposition submitted thereto; review of the Court file; and upon due deliberation, the motion and cross-motion are decided as follows. Plaintiff commenced this action seeking damages for injuries sustained after he tripped and fell on an alleged defect in defendant’s parking garage. The plaintiff testified at his examination before trial (“EBT”) that he left his apartment and ventured to his building’s adjacent garage to retrieve his vehicle. While in the garage, plaintiff tripped on the raised edge of an area in the floor in which a metal plate was placed over a floor drain. Plaintiff testified that he tripped and fell due to the indentation, which he estimated to be approximately two inches in height, sustaining a head injury. Plaintiff, unable to stand, phoned the building’s superintendent for help. The superintendent arrived and helped plaintiff to his feet. Plaintiff went to a local urgent care facility on his own but was later taken to the hospital by ambulance for his injuries. Plaintiff testified that because of his injuries and a brain surgery, the date of which he could not recall, his memory was affected, including his ability to remember the subject incident. The building superintendent submitted to an EBT and testified consistently that he was phoned by plaintiff for help, and he located the plaintiff on the floor of the garage bleeding from his head. The plaintiff indicated to the superintendent specifically that he had fallen and struck his head. As relevant to the instant motions, the superintendent confirmed that the garage had operable surveillance cameras triggered by motion detection and, later that same day, he retrieved the footage which captured the incident on video. The superintendent gave testimony stating that he reviewed the surveillance video, which he contends did not show plaintiff tripping over any hazard, but rather inexplicably stumbling with no indication that his head struck the ground or any surrounding objects. Later that evening, during a conversation about the day’s events, he showed the video to his wife. Significantly, the superintendent confirmed that surveillance videos could be preserved within three days from the footage being captured, but in this instance, he declined to save the video recording because he “didn’t think this was important for us.” The superintendent testified that solid metal drain covers were placed in the garage, and confirmed that the subject metal drain cover “didn’t fit the hole.” The superintendent also testified that he later replaced and discarded the subject drain cover, despite his knowledge of this “lawsuit” and plaintiff’s allegations that the defective condition caused his injuries. Plaintiff now moves to foreclose defendant from contesting liability, alleging an adverse inference will not cure the prejudice sustained by plaintiff from the spoliation of key evidence — the surveillance video showing plaintiff’s fall and the metal drain cover that allegedly caused the fall — such that defendant’s answer should be stricken. Defendant cross-moves for summary judgment and avers that plaintiff’s alleged memory loss negates his ability to establish causation. Supreme Court has broad discretion to determine a sanction for the spoliation of evidence (Harry Winston, Inc. v. Eclipse Jewelry, Corp., 215 AD3d 421, 422 [1st Dept 2023], citing Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d 543 [2015]). However, “[e]ven when a party is entitled to sanctions for spoliation, striking a pleading is a drastic sanction in the absence of willful or contumacious conduct and…the court should consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness” (Harry Winston, Inc., 215 AD3d at 422). “[S]triking a pleading is usually not warranted unless the evidence is crucial and the spoliator’s conduct evinces some higher degree of culpability” (Russo v. BMW of N. Am., LLC, 82 AD3d 643, 644 [1st Dept 2011], citing Hall v. Elrac, Inc., 79 AD3d 427, 428 [1st Dept 2010] ["Absent proof that the destruction of [evidence] was willful, contumacious or in bad faith, the court properly declined to impose the drastic sanction of striking defendant’s answer”]). There is strong disfavor for striking a pleading as a sanction for spoliation absent a showing that (1) the destruction of evidence was willful, contumacious or in bad faith and (2) the loss of the evidence deprives the moving party of the ability to prosecute or defend their case (Harry Winston, Inc., 215 AD3d at 422 [striking the answer not warranted as plaintiff failed to establish that the unavailability of the lost and destroyed evidence prejudiced it and left it unable to prosecute its action]; Burke v. Queen of Heaven Roman Catholic Elementary School, 151 AD3d 1608 [4th Dept 2017] [abuse of discretion to strike defendant's answer where the loss of evidence did not deprive the plaintiff of the means of establishing his claim]; Peters v. Hernandez, 142 AD3d 980, 981 [2d Dept 2016] [court improvidently exercised its discretion is striking defendants answer where plaintiff's "ability to prove his case without that [evidence] was not fatally compromised”]). The inquiry is best addressed as two prongs. First, seldom does the spoliator admit to acting deliberately, thus their intentions are gleaned from the factual circumstances surrounding the alleged destruction. While the superintendent testified that he deemed the video unimportant, his behavior that day evinces otherwise. His uncontroverted testimony reveals he instinctively checked the surveillance system for some offering of how the incident occurred. It is undisputed that the video depicted the entire incident. The superintendent then showed the video to his wife, allowing plaintiff’s fall to become evening conversation fodder. The superintendent also knew the video would be deleted automatically after three days. Further, despite acknowledging plaintiff was bleeding from the head when he found him, the superintendent denied the footage depicted any head injury. When showed photographs of plaintiff’s injuries, he immediately sought to mitigate their significance, noting that the injury he personally observed was significantly less severe. Finally, he did ultimately report the fall to his superiors, showing that he didn’t consider it a commonplace occurrence or something he disregarded. The circumstances, taken as a whole, demonstrate that the superintendent acted willfully in allowing the surveillance to best lost (compare Scansarole v. Madison Sq. Garden, L.P., 33 AD3d 517, 518 [1st Dept 2006] ["The lost video depicting post-accident events is not crucial to plaintiff's case" and "the loss of this video record was the result of inadvertent, technical mishaps"]). The same can be inferred from his discarding of the metal drain cover (see e.g., VOOM HD Holdings LLC v. EchoSTar Satelite L.L.C., 93 AD3d 33, 36 [1st Dept 2012] ["the destruction of e-mails after litigation had been commenced, when [defendant] was unquestionably on notice of its duty to preserve, was grossly, negligent, if not intentional”]). The second prong, then, is whether plaintiff can still prove his case without the surveillance video or metal drain cover. Interestingly, it is defendant that shores up this argument for plaintiff. In their cross-motion, defendant squarely attacks plaintiff’s strained recollection of the incident and seeks summary judgment based on plaintiff’s inability to establish causation. The irony lies in the fact that the missing video contains the precise moment and manner of the plaintiff’s fall, while the alleged instrumentality responsible for the incident is the discarded metal drain cover. The hole in plaintiff’s case is defendant-made, and the burden on plaintiff to establish causation has become unduly burdensome due to defendant’s conduct (compare Jackson v. Whitson’s Food Corp., 130 AD3d 461 [1st Dept 2015] [plaintiff's case not "fatally compromised" because plaintiff still had "her own testimony, surveillance footage showing the accident itself, and documents defendants provided during discovery"]). The concern, overall, is that a jury might place greater emphasis on the plaintiff’s faltering memory during his testimony rather than giving due consideration to a straightforward reading of an adverse inference charge. Based on the foregoing, the Court finds the lost evidence was crucial and the defendant acted willfully in its destruction. Further, the absence of the surveillance video and metal drain cover, due to defendant’s conduct, fatally compromised plaintiff’s case, and left plaintiff without means to prove his cause of action (compare Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 140 AD3d 607 [1st Dept 2016] [Striking pleading for spoliation not warranted "given the massive document production and the key witnesses that are available to testify…"]). With due consideration to the breadth of caselaw on this issue, the Court in its discretion finds that these specific circumstances present the rare occasion where an adverse inference sanction is insufficient to cure the prejudice befallen to plaintiff and warrants defendant’s answer being stricken. Accordingly, it is hereby ORDERED that plaintiff’s motion is granted in its entirety; and it is further ORDERED that the Clerk is directed to enter judgment on the issue of liability in favor of the plaintiff; and it is further ORDERED that defendant’s cross-motion is denied. This is the Decision and Order of the Court. Dated: July 27, 2023
