[*1]
Ferriggi v Best Yet Mkt. of Astoria, Inc.
2014 NY Slip Op 51504(U) [45 Misc 3d 1209(A)]
Decided on October 17, 2014
Supreme Court, Queens County
McDonald, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 17, 2014
Supreme Court, Queens County


Walter Ferriggi, Plaintiff,

against

Best Yet Market of Astoria, Inc., Defendant.




8564/2013
Robert J. McDonald, J.

This is an action for damages for personal injuries allegedly sustained by the plaintiff as the result of a slip and [*2]fall accident that occurred on April 9, 2013 at the Best Yet supermarket located at 19-30 37th Street, Astoria, New York. Plaintiff alleges that while shopping he slipped on debris allegedly left on the floor by an employee of the supermarket.



Plaintiff commenced an action for negligence against the supermarket by the filing of a summons and complaint on May 2, 2013. Issue was joined by service of defendant's answer dated August 19, 2013. A Note of Issue was filed on October 2, 2014.



Depositions of the parties were held on March 28, 2014. At that time the plaintiff, age 84, testified that on the date in question he slipped on a six inch piece of leaf that was on the floor of the supermarket's produce aisle. He stated that as a result of the fall he sustained a fractured hip.



James Weatherford, an Assistant Store Manager for the subject location, was also deposed on March 28, 2014. He stated that immediately following the accident he reviewed the surveillance video of the accident in the manager's office. He did not know where the video was at the present time. He stated that he did not preserve it and he did not direct someone else to preserve it. Based on his personal review of the video and his observations at the scene he prepared an accident report. The accident report states that Mr. Ferriggi slipped on a piece of mango peel that was on the supermarket floor.



Mr. Weatherford also testified that he was working at the store on the date of the accident and upon learning of the accident he immediately went over to the location in the produce aisle. He observed a mango peel on the floor. He stated that the video showed that prior to the accident, supermarket employee, Jose Romero, was taking produce out of cartons and placing it on the shelf. He observed that when Jose was finished packing out the product Jose cleaned up and put the empty boxes and other garbage onto a U-boat and pulled it to the back room. He stated that he did not observe Jose Romero unpacking mangos. He stated that he watched the video for the time period beginning one half hour prior to the accident. He did not see the mango peel in the half hour prior to the accident although he stated that the mango peel was too small to be seen clearly on camera. He did state that he did see something on the floor after Jose left the area from unpacking boxes, prior to the accident. He stated that he faxed the time and date of the accident and the corresponding camera numbers to corporate headquarters in Bethpage.



With respect to the plaintiff's accident, he stated that he [*3]observed the plaintiff walk into the store, make a right into the produce department, slip on something, fall backwards, hit his head on an apple bin and lay out on the floor. When asked what caused the plaintiff to slip, he stated, that he saw something on the floor, a speck of something he could not identify. He did not try to recover the video. He does not know where the video is at the present time. He did not attempt to save the video, copy the video or call anyone regarding saving the video. He testified that in preparing the accident report he described the accident as: "walking in the produce, slipped on a mango peel." He did not send the video to the corporate office.



On September 27, 2013 and on March 28, 2014 plaintiff sent a notice for discovery and inspection to defendant's counsel seeking a copy of the hourly sweep log as well as a copy of the video surveillance tape for the date of the incident. A copy of the video surveillance tape was not forthcoming.



Plaintiff now moves for an order seeking to strike the defendant's answer for wilfully failing to provide discovery including the surveillance video which, according to Mr. Weatherford, depicts the accident and the area of the accident for at least a half hour prior to the accident. At the time the motion was submitted in the Central Motion Part, the parties resolved the issue as to discovery demands, however the branch of the motion for sanctions for spoliation of evidence was submitted for the court's determination.



With respect to the issue of spoliation of the video surveillance tape, plaintiff submits that the defendants wilfully disposed on the video although aware that it contained a full depiction of the plaintiff's accident. Counsel contends that pursuant to CPLR 3126 the court may strike a party's pleading where a party destroys essential evidence such that the opponents are prejudicially bereft of appropriate means to confront a claim (citing Gerber v Rosenfeld, 18 AD3d 812 [2d Dept. 2005][where a party destroys essential physical evidence "such that its opponents are prejudicially bereft of appropriate means to confront a claim with incisive evidence, the spoliator may be sanctioned by the striking of its pleading]). Plaintiff asserts that the video was intentionally destroyed because it demonstrated the creation of the defect by one of defendant's own employees. Counsel claims that the destruction of the video leaves plaintiff without an opportunity to rebut Best Yet's theory that it neither created nor had notice of the defect. Counsel claims that the video could refute that defense. Counsel also asserts that even if the destruction of the video was not intentional that sanctions may be imposed for negligent [*4]spoliation. Plaintiff's counsel asserts that defendant was aware of the accident as of the day of its occurrence, was aware that the video tape clearly showed the accident, was aware that a lawsuit could be commenced and made no effort to preserve the tape (see Schimicci v Dermpath, Inc., 49 AD3d 626 [2d Dept. 2008]; Neal v Easton Aluminum, Inc., 15 AD3d 459 [2d Dept. 2005]). Plaintiff claims that the defendant's failure to take adequate precautions to preserve key evidence jeopardizes the plaintiff's opportunity to adequately demonstrate that the defendant created the hazardous condition on the floor and had actual and constructive notice of the debris on the floor prior to the plaintiff's accident.



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, and/or fashioning an adverse inference charge at trial.



In opposition, Dara Rosenbaum, Esq., counsel for the defendant, contends that a sanction is not warranted for spoliation of evidence because the plaintiff has not shown that the defendant intentionally or negligently disposed of critical evidence and failed to show that the lost evidence fatally compromises plaintiff's ability to prove his claims.



In support of its opposition, the defendant submits the affidavit of Holly Davis, Loss Prevention Director for Best Yet Market, dated September 8, 2013. Ms. Davis states that in her capacity as Loss Prevention Director, it is her responsibility to oversee the store's video surveillance systems and to retrieve footage in the event of an incident. She states that the system would store footage for 13 days. She states that within two days following the plaintiff's accident she went to Best Yet Market of Astoria to obtain a copy of the video footage which depicted the subject accident. However, she states that she was unable to view the subject footage or download a copy of the subject video footage because of a problem with the recording system's hard drive. She states that, "I was not able to ascertain and do not know why the footage was not available." She states that an outside technician from Safewatch was subsequently dispatched to Best yet Market of Astoria but he was unable to retrieve any footage. Therefore, there is no video footage available depicting plaintiff's alleged accident."



Thus, based upon the affidavit of Ms. Patterson, the defendant asserts that the video is not available due to technical problems and it did not intentionally destroy the [*5]surveillance footage. Defendant asserts that there is no evidence to demonstrate that the defendant did anything negligently or intentionally to cause the subject footage to become unavailable. Defendant states that the footage became unretrievable shortly after the accident due to an apparent hard drive malfunction. Secondly, counsel claims that the unavailability of the surveillance video has not fatally compromised plaintiff's ability to prove his claims as the plaintiff can call as witnesses James Weatherford who reviewed the surveillance video and Jose Romero who unpacked cartons and allegedly cleaned and inspected the area prior to the accident.



In reply, the plaintiff submits that Ms. Patterson's affidavit is based upon hearsay statements from Safewatch to the effect that Safewatch was unable to retrieve the video surveillance. However, plaintiff asserts that the defendants have not produced a statement from a Safewatch employee describing the reason the video was not retrievable and what efforts they made to retrieve the video. Further, counsel asserts that no explanation has been provided as to why the video was not immediately preserved and sent to the corporate office pursuant to defendant's standard operating procedure. Plaintiff claims that Best Yet negligently failed to take proper and adequate steps to preserve the surveillance footage, to copy it, and to send it to the corporate office.



Upon review and consideration of the plaintiff's motion, defendant's affirmation in opposition and 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]). With respect to spoliation of evidence the Appellate Division has held that the Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence (see Neve v City of New York, 117 AD3d 1006 [2d Dept. 2014]; Samaroo v Bogopa Serv. Corp., 106 AD3d 713[2d Dept. 2013]; Denoyelles v Gallagher, 40 AD3d 1027 [2d dept. 2007]). Generally, striking a pleading is reserved for instances of willful or contumacious conduct. However, 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 (see Dean v Usine Campagna, 44 AD3d 603 [2d Dept. 2007]; Giuliano v 666 Old [*6]Country Rd., LLC, 100 AD3d 960 [2d Dept. 2012]; Falcone v Karagiannis, 93 AD3d 632 [2d Dept. 2012]). The party requesting sanctions for spoliation of evidence 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 (see Mendez v La Guacatala, Inc., 95 AD3d 1084[2d Dept. 2012]; Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717[2d dept. 2009]). Further, the court may impose a sanction less severe than the striking of the responsible party's pleading or no sanction where the missing evidence does not deprive the moving party of the ability to establish his or her case or defense (see Jamindar v Uniondale Union Free School Dist., 90 AD3d 610[2d Dept. 2011]).



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 defendant had a duty to preserve the evidence, the existence of proof of an explanation for the loss of evidence, the degree of prejudice to the opposing party and whether the defendant viewed the video tape and unilaterally elected not to preserve it (see Lentini v Weschler, 992 NYS2d 135 [2d Dept. 2014]).



Here, although Mr. Weatherford, the Assistant Manager of the store, viewed the videotape immediately after the accident, the plaintiff failed to prove that he or anyone else intentionally destroyed the videotape, intentionally failed to send it to corporate headquarters or intentionally made it unavailable for the plaintiff to view. It is clear however, from Mr. Weatherford's testimony that the video tape clearly depicted the plaintiff's slip and fall accident as well as showing the activity in the aisle where he fell prior to the accident and also shows whether there was debris on the floor prior to the accident.



Based upon the affidavit of Ms. Davis, this court does not find that the surveillance video was disposed of willfully, intentionally, contumaciously, or in bad faith. Ms. Davis states that when she tried to retrieve the video she was told by a technician from Safewatch that there was a problem with the system's hard drive. However, although the defendant claims that there was an apparent hard drive malfunction, the defendant failed to provide evidence from a the servicing technician describing the actual problem, what efforts were made to retrieve the video from the hard drive, and whether the video was erased. Knowing that the plaintiff was seriously injured from the accident and that the accident would likely be the subject of a lawsuit, and knowing that the videotape clearly depicted the [*7]accident, the unpacking of produce prior to the accident, and any debris in the aisle, this court finds that defendant was negligent in failing to preserve or to make diligent efforts to retrieve the surveillance video or repair the problem with the hard drive so that the plaintiff could have the opportunity to view it (see Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d 605 [2d Dept. 2014]; Lentz v Nic's Gym, Inc., 90 AD3d 618 [2d Dept. 2011]).



In fashioning an appropriate sanction, this court finds that the loss of the video does not fatally deprive plaintiff of a means to prosecute his action. The plaintiff, Mr. Weatherford who viewed the tape, and Mr. Romero, who unpacked the boxes, are available to testify and the accident report and medical response reports provide the plaintiff with the ability to prove the proximate cause of the accident. Thus, under the circumstances of this case, this court finds that the trial court shall fashion an appropriate 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]). In addition, this Court finds that the defendant shall be precluded from offering testimony at trial to contradict the plaintiff's claim of adequate notice or that the defendant created the condition which caused the plaintiff to slip and fall (see Samaroo v Bogopa Serv. Corp., 106 AD3d 71 [2d Dept. 2013]; Aloyts v 601 Tenant's Corp., 84 AD3d 1287 [2d Dept. 2011]; Fossing v Townsend Manor Inn, Inc., 72 AD3d 884 [2d Dept. 2010]; Weber v Harley-Davidson Motor Co., Inc., 58 AD3d 719 [2d Dept. 2009).



Plaintiff's motion for a trial preference pursuant to CPLR 3403 (a)(4) based upon the plaintiff's age is granted without opposition (see Andersen v Park Ctr. Assocs., 250 AD2d 473 [1st Dept. 1998]; Borenstein v City of New York, 248 AD2d 425 [2d Dept. 1998]). The plaintiff shall file a copy of this order with the Clerk of Court at the time of the filing of the note of issue.



This constitutes the order of the Court.



Dated: Long Island City, NY

October 17, 2014

______________________________

ROBERT J. MCDONALD

J.S.C.