The following papers numbered 1 to 14 were read on this motion by plaintiff, TERRELL JEVON McKENZIE, for an order, pursuant to CPLR 3126, striking the answer of defendant, SOUTHSIDE HOSPITAL, for failure to preserve video surveillance evidence; or in the alternative, precluding defendant from offering any evidence or testimony in defense of this action; and/or allowing for an adverse inference charge at the time of trial; and compelling the defendant to fully comply with plaintiff's demand for sworn statement:Papers

Numbered

Plaintiff's Notice of Motion-Exhibits................1 - 5

Defendant's Affirmation in Opposition................6 - 9

Plaintiff's' Reply Affirmation......................12 - 14

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This is an action for damages for personal injuries allegedly sustained by the plaintiff as the result of an incident that occurred on April 8, 2013, when the plaintiff was attempting to enter an elevator located at Southside Hospital. Plaintiff contends that he was struck by a moveable x-ray machine while it [*2]was being transported in the Hospital causing him to sustain injuries to his neck, back, and right shoulder.

In his affidavit dated December 31, 2013, plaintiff, a delivery person from Staples, states that on the date of the accident he was delivering supplies to the hospital and was on his way to the fourth floor. He states that as he attempted to enter the main floor elevator, "I was run over by an x-ray machine transported by a hospital employee. I was hit so hard that the force knocked me to the ground." He states that as a result of the accident, he began to experience pain in his neck, back, and right shoulder. He states that, "I was informed by a hospital security guard that the whole thing was captured on tape." He states that when he asked to see the tape, he was declined access by hospital personnel.

When the police arrived on the scene, an incident report was prepared. The hospital was also immediately made aware of the incident. Counsel also asserts that the incident was captured on the hospital's video surveillance system and that the hospital knew or reasonably should have known that the surveillance video would be the subject of an investigation and a potential claim against the hospital. In its response to a preliminary conference order, the hospital stated, "defendants do not have video or security footage taken of the incident from the date of the loss inasmuch as the DVR system for the Hospital faulted and did not retain any footage from the date of the loss."

Plaintiff commenced an action for damages against hospital by the filing of a summons and complaint on July 5, 2013. The complaint asserts causes of action for negligence and violation of Labor Law § 240 Issue was joined by service of defendant's answer dated July 25, 2013.

On December 9, 2013, the plaintiff served a "Notice of Preservation" with regard to the surveillance tape. In its response, dated December 17, 2013, the hospital states that "defendant does not have video or security footage taken of the incident from the date of the loss inasmuch as the DVR system for the hospital did not retain any footage from the date of the loss." Moreover, defendant states that upon information and belief the security camera view of the area of loss was blocked by a laundry cart and thus, even if the footage was available, said footage would not have and did not depict the accident or the parties to the accident and is therefore not relevant or material to the instant matter."

Plaintiff asserts that despite its knowledge of the [*3]importance of the video tape, the defendant failed to preserve surveillance video which could have demonstrated how reckless or careless the hospital staff member was, serve to identify and ascertain material witnesses and corroborate plaintiff's testimony. Counsel asserts that despite sufficient notice of the accident, the plaintiff failed to retrieve and preserve the video tape. As a result, the plaintiff seeks an order pursuant to CPLR 3126 sanctioning the defendant for failure to preserve the tape by either striking the defendant's answer, precluding defendant from offering testimony in defense of the action, or fashioning an adverse inference charge at trial. Counsel claims that among the factors to be scrutinized in determining a proper remedy are whether the defendant was aware the evidence might be needed for future litigation, whether the plaintiff had a duty to preserve the evidence, whether the plaintiff had been served with a notice of preservation, and whether the defendant viewed the video tape and unilaterally elected not to preserve it.

Plaintiff claims that due to the defendant's spoliation of evidence, Southside Hospital has gained an unfair advantage and has prejudiced the plaintiff in its presentation of the case.

In addition, defendant responded to a preliminary conference order requiring defendant to produce all rules and protocols and regulations relative to the transportation of x-ray machines by stating, "following a diligent search and upon information and belief, there are and were no policies and procedures in place which are responsive to plaintiffs demand." Thereafter, plaintiff served a "Demand for Sworn Statement and Particulars" requesting the defendant to provide, with specificity, what measures were undertaken to substantiate their position that no protocol was in place. Counsel requests an order compelling the defendant to respond to the Demand for Sworn Statement.

In opposition, Aviva Stein, Esq., counsel for defendant, states that plaintiff did not serve the defendant with a demand for video surveillance prior to the commencement of the lawsuit. The first notice of a claim against the hospital, according to the defendant, was on June 20, 2013, two months after the accident, by the service of a summons and complaint. Further, counsel states that it disclosed to the plaintiff on August 14, 2013, two months after the commencement of the action that no footage existed from the incident. Defendant states that by notice dated September 17, 2013 it supplied plaintiff with a copy of the hospital's incident report prepared on the date of the accident by Security Supervisor, Brian Gribben, in which it is stated "after viewing cctv there was a linen cart blocking the view of the incident." [*4]

The defendant also submits an affidavit from Mr. Gribben. He states that on the date of the incident he heard of the alleged incident through Rapid Response, a loudspeaker announcement system. He stated that he reported to the area where the accident occurred as well as to the emergency room to speak with Mr. McKenzie to prepare a report. He states that he advised the plaintiff at that time that he would review the closed circuit television system to see if the incident was caught on tape. He reviewed the tape on the same date as the incident. He states, "there was no footage of the alleged accident because a linen cart was fully blocking the camera's view. Therefore, there was no footage obtained of the plaintiff's alleged accident." He further states, "the camera's footage was not retained because the DVR system did not preserve footage due to malfunction and/or the DVR system, which recycles memory every thirty days, recorded over footage." He states that he was never asked by the plaintiff or anyone on plaintiff's behalf to preserve the camera's footage from April 8, 2013."

Defendant contends that the plaintiff's Notice to Preserve, served on December 9, 2013, eight months after the accident, is not, "immediate, adequate and sufficient" notice. In addition, defendant claims that the sanctions should not be imputed against the defendant for spoliation of evidence because, as stated by Officer Gribben, there was never any usable view of the incident that was destroyed. As Gribben stated, the camera's view of the incident was blocked by a linen cart. Therefore, counsel contends that the defendant did not destroy essential physical evidence which fatally compromises the plaintiff's ability to prove his claim (citing Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717 [2d Dept. 2009]). Further, counsel argues that the sanction of striking a defendant's pleading is not appropriate unless the plaintiff can show that defendant intentionally failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation (citing Cordero v. Mirecle Cab Corp., 51 AD3d 707 [2d Dept. 2008][where a party did not discard crucial evidence in an effort to frustrate discovery, and cannot be presumed to be responsible for the disappearance of such evidence, spoliation sanctions are inappropriate]). However, counsel states that lesser sanctions can be imposed if evidence is negligently disposed of and all other elements of a valid spoliation claim, such as prejudice to the plaintiff and inability to prosecute the case, can be met (citing Scarano v Bribitzer, 56 AD3d 750 [2d Dept. 2008]).

Defendant claims that as the sworn affidavit of Officer Gribben states that the any view of the accident was blocked by a linen cart that in fact there was no actual surveillance video in [*5]existence that would have been advantageous to the plaintiff's case. Further, defendant contends that the plaintiff will not be prejudiced by the destruction of the surveillance video because the video did not show the event in question.

Upon review and consideration of the plaintiff's motion, defendant's affirmation opposition and the plaintiff's reply thereto, this Court finds as follows:

The common-law doctrine of spoliation allows for sanctions when a party negligently disposes of evidence before the adversary has had an opportunity to inspect it. However, the court must consider prejudice resulting from spoliation in determining what type of sanction, if any, is warranted as a matter of fundamental fairness (see Scarano v Bribitzer, 56 AD3d 750 [2d Dept. 2008]). Generally, striking a pleading is reserved for instances of willful or contumacious conduct and where a party's negligent loss or destruction of evidence does not deprive its opponent of a means to present or defend against a claim, striking a spoliator's pleading is not warranted (Dean v Usine Campagna, 44 AD3d 603 [2d Dept.2007] also see Giuliano v. 666 Old Country Rd., LLC, 100 AD3d 960 [2d Dept. 2012] Falcone v Karagiannis, 93 AD3d 632 [2d Dept. 2012]). "The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised the movant's ability to prove a claim or defense (Mendez v La Guacatala, Inc., 95 AD3d 1084 [2d Dept. 2012] citing Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717 [2d Dept. 2009]).

Here, it is clear that the defendant hospital was on notice from the time of the accident that there was a possibility of a claim for damages due to injuries sustained by the plaintiff. The police were called to the scene and a hospital security guard reported immediately to the scene and interviewed the plaintiff in the emergency room. The hospital security guard, Mr. Gribben, even made the plaintiff aware that there might be surveillance video footage of the incident through the hospitals closed circuit tv system. The guard viewed the footage that day and unilaterally determined that the footage was of no use to the plaintiff based upon his determination that a linen cart blocked the view of the accident. As a result, the hospital did not make the video footage available to the plaintiff and allowed the system to automatically erase or record over the footage as it normally does after 30 days.

Based upon the affidavit of the security guard, this court [*6]does not find that the surveillance video was disposed of willfully, intentionally, contumaciously, or in bad faith. The hospital was not on actual notice that the plaintiff desired to have the video preserved until after the action was commenced in June 20, 2013 and after the preliminary conference in August 2013. However, knowing that the plaintiff was claiming to have been injured from the accident with a hospital employee and that the accident would likely be the subject of a lawsuit, it was negligent of the hospital to fail to preserve the video for possible future litigation without affording the plaintiff the opportunity to view it. Whether or not the video depicted the accident, the plaintiff would have been entitled to view the video and make its own determination as to its value as evidence at the trial. The plaintiff is not required to rely on the guard's assessment that the content of the video would not be of value to the plaintiff.

In fashioning an appropriate sanction, this court finds that the loss of the video does not deprive plaintiff of a means to prosecute his action. There are police accident reports, emergency reports, and witnesses who are available testify with regard to the proximate cause of the accident. Thus, under the circumstances of this case, this court finds that the trial court shall fashion a negative inference charge against the defendant based upon its failure to preserve the video surveillance tape (see Mendez v La Guacatala, Inc., 95 AD3d 1084 [2d Dept. 2012] Minaya v Duane Reade Intl., Inc., 66 AD3d 402 [1st Dept. 2009] Molinari v Smith, 39 AD3d 607 [2d Dept. 2007]).

That branch of the plaintiff's motion for an order directing the defendant to respond to plaintiff's demand for a sworn statement dated December 12, 2013 is granted to the extent that the defendant shall serve a response within 15 days of service of a copy of this order with notice of entry thereof.

So Ordered.

Dated: February 24, 2014

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.