This is an action for personal injuries by Plaintiffs due, allegedly, to Defendant's negligence causing injury to Plaintiff-T.L. and for loss of companionship to Plaintiff-E.L. It is alleged by Plaintiffs that Defendants were negligent in maintaining/overseeing a gymnasium at East Side Middle School ("the School").

The crux of this motion surrounds a deposition in this matter that took place in 2020 and 2021. More specifically, Defendants' employee and the physical education teacher present when the incident occurred, Joseph Deneroff. It is alleged that during Deneroff's deposition he attested there were two cameras inside of the gymnasium. These cameras are alleged by Plaintiffs to be located "inside the gym at the two entrances." Plaintiffs further allege that Deneroff testified that these two cameras were present at the time of alleged accident that gave rise to the instant tort action. Plaintiffs also state that Deneroff testified after an incident occurs in the gym, he would [*2]complete an accident report to provide to the School's assistant principal.

Following this deposition, Plaintiffs issued demands in May 2021 seeking, inter alia, the aforesaid footage from the cameras in the gymnasium and the alleged report following the incident that gave rise to the action. Plaintiffs allege that Defendants failed to comply with these demands, even after numerous court orders directing compliance.

The parties entered a So-Ordered Stipulation and Order dated on or about May 25, 2023, wherein the Court directed the "City to respond to the post-EBT demands within forty-five (45) days." (NYSCEF Doc. No. 37). Then again, on or about July 7, 2023, this Court again issued a So-Ordered Stipulation and Order that directed Defendants to respond to Plaintiff's post-EBT demands within thirty (30) days. (NYSCEF Doc. No. 38). Defendants issued a response to the post-EBT Demands on or about September 29, 2023, wherein the Defendants stated "the City is conducting a search for photographs and surveillance footage" and otherwise objected to Plaintiffs other demands." (NYSCEF Doc. No. 51).

The parties then appeared again, and the Court again issued a So-Ordered Stipulation and Order on or about October 19, 2023, directing the City to "conduct a supplemental search for the report mentioned in the City EBT and footage from the gymnasium by January 15, 2024, or otherwise provide an affidavit attesting that footage and documents no longer exist. (NYSCEF Doc. No. 67). The Court issued an identical direction except to the extent that Defendants were given until March 20, 2024, to comply, in another So-Ordered Stipulation dated on or about February 22, 2024. (NYSCEF Doc. No. 68). The Court again issued an identical directive except to the extent that the city was given forty-five (45) days to comply, in a So-Ordered Stipulation and Order dated on or about March 28, 2024. (NYSCEF Doc. No. 69). The parties appeared and entered into another So-Ordered Stipulation and Order dated May 30, 2024, which directed Defendants "to provide an affidavit" setting forth the search efforts and results for Defendant's search within fifteen (15) days. (NYSCEF Doc. No. 70). The Court on or about June 20, 2024, issued an Order granting Plaintiffs leave to file the instant-discovery motion. (Order [NYSCEF Doc. No. 71]).

Plaintiffs move by Notice of Motion for an order striking Defendants' Answer for an alleged failure to comply with multiple Court Orders directing compliance with various discovery issues, for failure to respond to Plaintiffs' Post Deposition Demands; or in the alternative, for an order precluding Defendants from offering opposition or support of any dispositive motions, or from offering evidence or testimony at trial. Plaintiffs further seek relief in the form of an extension of time to file a Note of Issue and for an Order drawing an adverse inference against Defendants for their alleged spoliation of evidence.^[FN1]

Defendants oppose arguing Plaintiffs have failed to establish the information sought in discovery exists, that if any evidence spoliated it is neither fatal to Plaintiffs' claims nor is it prejudicial to Plaintiffs, and that Plaintiffs have otherwise failed to demonstrate the circumstances of this case warrant striking Defendants' Answer.

This motion sequence centers around testimony given by Deneroff during his deposition allegedly stating that there is camera footage and a potential report that was made in relation to the incident that gave rise to this action.

As to the issue of the surveillance footage, Deneroff testified (NSYCEF Doc. No. 79), in relevant part,

Q: Are there any types of surveillance equipment in the gymnasium such as cameras or any type of monitoring equipment?

A: There are two cameras.

Q: Those cameras, where are they located?

A: The two entrances of the gym.

[. . .]

Q: Now, do you know what areas of the gymnasium those two cameras cover from looking at the footage?

A: I — I could — I would think so, but I'm not 100 percent sure.

Q: From your experience, what parts of the gymnasium did the cameras show?

A: The two entry ways. When I told you about the 50x100 rectangle, there is I think just two super small or one very small alcove where you can call it the rear doors of the gym, and then a slightly larger 10x10 space in the main entry of the gym.

Q: Do you know where those cameras were installed?

A: I think they came with the building. I think we moved into the building around 2010, in June 2010 is my best recollection.

Q: Do these cameras show any other parts of the gymnasium surface where people would actually play any of the athletic activities?

A: Not to my knowledge.

[. . .]

Q: Now, the cameras that we talked about before, do you know if they were still installed on the day that T was injured?

A: I — I have no knowledge if the cameras were up and working or anything like that, if they were installed. I would assume — the boxes tend to be there.

Q: I —- just want to be clear, I wasn't asking you if they were working or anything. I was just asking you if you knew they were there.

A: It's — there is two globes that never been removed. I don't know if —- what's in them. I know they are supposedly cameras, but I can't really see them. They are dark.

(Pl. Ex. E [NYSCEF Doc. No. 79])

On the issue of the report, Deneroff testified, in relevant part,

Q: Did you at any point after T was injured give any type of statements or fill out any type of report or paperwork regarding what happened in that class?

A: I can tell you what's typical. I cannot remember the exact occurrence, what I wrote that day.

Q: Let's start with what's typical in terms of the procedure and then we will get back into what happened that day.

A: Whenever there is an incident in the classroom, I will fill out a report and I will give it to my assistant principal after the student's welfare is taken care of.

Q: Now, the report that you would fill out, is it a form that was provided to you by the school, by the DOE, or is it just something you write yourself?

A: It would be a handwritten thing on a standard form, a DOE letter head.

Q: I know you said —- withdrawn.

Without talking about a particular instance, have you ever filled out that paperwork due to an incident happening in class?

A: Yes

Q: When you fill that out, I apologize, you give it to the assistant principal?

A: Yes

Q: Do you have any recollection or knowledge if you filled out this form for the class that occurred with T on October 20, 2017?

A: I cannot remember doing the exact writing, but I am sure I did one since I have done one for much less severe occurrences.

Q: Do you remember giving any type of paperwork or forms to Kevin Colon regarding the incident that occurred with T.L. on October 20, 2017?

A: I feel like we're repeating the previous statement. Is there something different in that question?

[Discussion between counsel]

Q: Any type of paperwork, anything written to Mr. Colon or anyone else at East Side Middle School regarding the incident that occurred with T during the class on October 20, 2017.

A: Because it was three and a half years ago, I cannot remember exactly writing that piece of paper, but I would have written a piece of paper on the DOE letterhead for them to — put it in my name at the top and signing at the bottom a form that they would put in and from there and it — yeah, go from there.

Q: When you would provide it to Mr. Colon, would you give it to him in person, would it be something that would be sent by e-mail, would it be given in some other fashion?

A: No, I would give it to him in person.

Q: If for some reason Mr. Colon wasn't available or wasn't there, is there somebody else you would have given it to?

A: No.

Q: Besides this form you would fill out and give to Mr. Colon, was there anything else that you would doe with regard to an incident that occurred during your classes during the school year 2017?

A: I would follow up with the student and the nurse. The nurse took over control of the situation from me so I could continue with my classes, and I would have visited the student at the nurse's office.

Q: Would you ever have given any type of oral report to either Mr. Colon, Mr. Getz or anybody else at the school regarding an incident that occurred in your class?

A: I'm not sure what you mean by oral report.

Q: Would you ever report what occurred and speak to them about it in person rather than write it down or filling out paperwork?

A: No. Never — I would always write it down.

Q: After you would give this type of form to Mr. Colon regarding an incident that happened in your class, was the procedure with him to follow up with you, would you [*4]follow up with him, something else?

A: I can't speak of the procedure. I know we spoke about T's health multiple times. We both assisted T in multiple ways in the past, just helping him through life, so we were very concerned with him as we are all our students, so we would have spoken positively and helped him in any way possible.

[. . .]

Q: Besides the form or report that you would give to Mr. Colon, is there any other type of paperwork or report that you ever remember filling out in terms of T's incident or that class that occurred on October 20, 2017?

A: No. I don't recall anything.

(Pl. Ex. E [NYSCEF Doc. No. 79]).

Based upon these representations at the EBT, Plaintiffs issued demands (noted supra) demanding production of the incident report from the date of the alleged accident and for video camera footage. As noted above as well, the City failed to meaningfully respond to these demands despite numerous Court Orders. The City did have multiple agents of the School complete affidavits; although, under scrutiny these affidavits raise concerns to the Court.

Principal Kupferman affirmed on May 31, 2024, "[a]fter an exhaustive search of 02m114 for such records, I did not find the aforementioned records." (Def. Ex. A [NYSCEF Doc. No. 92]). Then, on June 11, 2024, Kupferman affirmed, "[u]pon information and belief there were no cameras in the third floor gymnasium at East Side Middle School on October 20, 2017. Therefore, no video records exist of the subject incident." (Def. Ex. B. [NYSCEF Doc. No. 93]).

After this motion sequence was commenced, the City secured two additional affidavits. One from Kupferman (Def. Ex. G [NYSCEF Doc. No. 98]) and one from Victor Hypolite who is the IPDVS Deployment Manager who "as a part of [his] duties, [he] perform[s] record searches at the request of the New York City Law Department for records located at DOE Schools, including East Side Middle School (02M114) on October 20, 2017." (Def. Ex. F [NSYCEF Doc. 97]).

Both subsequent affidavits raise concerns as they contradict the statements made in the earlier Kupferman affidavits. First, the June 11, 2024, Kupferman affidavit stated there were no cameras in the third-floor gymnasium. (Pl Ex. B ¶3 [NYSCEF Doc. No. 93]). However, this statement is directly contradicted by the entire Hypolite Affidavit which makes clear that there are three (3) cameras on the third-floor gym (two inside the gym and one outside the gym which faces the corridor leading to the gym). (Pl. Ex. F ¶¶ 6-9 [NYSCEF Doc. No. 97]). Critically, as supported by the documentary proof, none of these cameras face the gymnasium floor where the alleged accident occurred.

More concerning to this Court is the fact that when the Kupferman affidavits are read together it appears that the report, if one had been created, would have been destroyed pursuant to ordinary practice by the time the affidavits were signed — however, not before the Demand for same was made and not before Justice Sweeting had issued an Order directing the turnover of the report.

Kupferman stated, on May 31, 2024, that Kupferman personally conducted a records search and that he did not find any such records. (Pl. Ex. A ¶¶ 2-3 [NYSCEF Doc. No. 92]). However, in the Kupferman affidavit dated September 6, 2024, it was stated that "[t]he standard [*5]procedure for retaining incident reports turned into the school administration is to keep them in our administrative offices (principal or assistant principal). The standard retention period for DOE incident reports is six years. After the six-year retention period is over, the files are shredded." (Pl. Ex. G ¶¶ 4-6 [NYSCEF Doc. No. 98]).

This statement is alarming because the alleged incident occurred on or about October 20, 2017, meaning six (6) years after such a date would be October 20, 2023. Under the policy, as sworn to by Kupferman, the records would have been shredded on or about October 20, 2023; thus, when Kupferman did the first search on or about May 31, 2024, the records would have been shredded and thus not able to be recovered. Critically, Plaintiff's demand for the aforesaid record(s) was made on or about May 11, 2021, well within the time period before the record(s) would have shredded pursuant to the DOE policy. Likewise, Justice Sweeting issued an Order directing a response to the demand for the record(s) on or about July 20, 2023. Accordingly, but for the City's failure to meaningfully and timely comply with both Plaintiffs' demands and this Cout's Order, it is very likely that a report would have been recovered because Deneroff stated "I cannot remember doing the exact writing, but I am sure I did one since I have done one for much less severe occurrences." (Pl. Ex. E at 52:13-16 [NYSCEF Doc. No. 79]).

Civil Practice Law and Rules section 3126 governs penalties for parties who refuse to comply with or otherwise disobey an order directing discovery and disclosure. The Rule provides three potential remedies for disobedience: (1) drawing an adverse inference and resolving the issue against the disobedient party; (2) precluding the disobedient party from contesting the information sought; and/or (3) striking a pleading. (CPLR § 3126[1]-[3]).

In the stratum of disclosure/spoliation penalties striking a pleading is the most severe remedy. Indeed, "[b]ecause striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, the prejudice that results from the spoliation must be considered in order to determine whether such drastic relief is necessary as a matter of fundamental fairness. Thus, where a party destroys key evidence such that its opponents are deprived of appropriate means to confront a claim with incisive evidence, the spoliator may be punished by the striking of its pleading." (De Los Santos v Polanco, 21 AD3d 397, 398 [2d Dept 2005]; see also, Favish v Tepler, 294 AD2d 396 [2002]). In determining if striking a pleading is appropriate the Court looks to see if "the loss of evidence will fatally compromise" the party's claim. (Ifraimov v Phoenix Indus. Gas, LLC, 4 AD3D 332, 333-334 [2d Dept 2004]).

Here, the City correctly argues that this extremely high burden is not met in this case. As argued by the City, the lack of surveillance footage and/or the incident report does not prevent Plaintiffs from putting forth their claim. This is because the teacher who was present during the incident, Deneroff, is available to testify as a witness with personal knowledge as to the incident. Accordingly, this Court finds that because the alleged spoliation, even if accepted as true, would not be fatal to the claim and therefore the drastic remedy of striking Defendants' Answer is inappropriate. (See e.g., Marro v St. Vincent's Hosp. & Med. Ctr., 294 AD2d 341, 342 [2d Dept 2002]["While it was the plaintiff's conduct which resulted in the destruction of the subject item of evidence, a motorcycle, the drastic remedy of dismissal of the complaint is unwarranted. There were three eyewitnesses to the happening of the accident, all of whom submitted affidavits or statements indicating their observations of the accident."]).

While striking Defendant's Answer is not supported by these facts, "[a] less severe [*6]sanction is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her defense or case." (Iannucci v Rose, 8 AD3d 437, 438 [2d Dept 2001]). The Court here finds disclosure/spoliation sanctions in the form of an adverse inference charge to be appropriate as to the report. (See E.W. Howell Co. v S.A.F. La Sala Corp., 36 AD3d 653, 655 [2d Dept 2007]). At issue here is the fact that through Defendants' negligence and failure to timely comply with the Court's Order, the Plaintiff was deprived of access to a purported report made by Deneroff. The Court must confront the issue of whether this Court can issue a sanction when there is not affirmative evidence of the report; the Court holds on these facts it does, as holding otherwise would force Plaintiffs into the impossible position of proving a negative.

Here, the fact is that Defendants' noncompliance of both court orders and discovery demands created a scenario where if the report existed; it would have been destroyed pursuant to DOE policy by the time Defendants finally complied with the Court's Orders and Plaintiffs' Discovery Demands. The Second Department faced a similar issue in E.W. Howell Co., and held, the Supreme Court acted appropriately when it awarded a negative inference charge for "business records lost by defendant." (Id. at 654). Like in E.W. Howell Co., Plaintiffs are still able to put forth a case; however, the sanction of an adverse inference charge at trial is appropriate because but for Defendants failure to comply with discovery orders, Plaintiff would either know for certain there was no report and be permitted to cross-examine Deneroff based upon his statements or they would know there is a report and would be able to use it in putting forth their case. Here, there is prejudice to Plaintiffs because this report would have been highly relevant given it would be a direct recitation of the events and would clarify greatly both the happenings that gave rise to the personal injury and would be a strong source to test the credibility of Deneroff. Accordingly, Plaintiffs' motion is granted to the extent of awarding an adverse inference charge against Defendants such that the jury in this matter shall be instructed there was a report, and it should be deemed to show evidence not favorable to Defendants case. Defendants are further precluded from introducing evidence to the contrary.

The Court reaches a similar conclusion on the surveillance issue. First, while it is true that the surveillance footage does not directly face the gymnasium floor, the fact remains that there could have been discoverable information from that footage even if it didn't capture the actual accident. Specifically, it could tend to show what happened after the injury occurred and before as it would show Plaintiff-TL leaving and entering the gym and presumably some level of response from Defendants in light of the injury. This speaks directly to the issues of reasonable care and contributory negligence. The fact remains that Defendants have still not provided this footage and this Court finds it appropriate to award Plaintiffs an adverse inference charge on this issue as well. Defendants approach to discovery in this matter has been concerning. The volume of Court Orders in the record and the Defendants contradicting statements on these critical issues of compliance are prejudicial to Plaintiffs. There is no dispute Defendants had this footage in their control, despite the material misrepresentation sworn to that there were no cameras.

"[C]ourts are vested with broad discretion in fashioning remedies that are precisely tailored to the discovery abuse at issue." (Crooke v Bonofacio, 147 AD3d 510, 511 [1st Dept 2017]). The Defendants' failure to provide this footage in their control despite court orders clearly supports an adverse inference charge. (See Garcia v Metropolitan Transp. Auth., 2018 WL 6198381[Sup Ct, NY County 2018]), Accordingly, Plaintiffs' application is further granted to the extent that the jury will be given an adverse inference charge as to the issue of the camera [*7]footage based upon Defendants utter disregard for compliance with discovery in this matter. Defendants are further precluded from introducing evidence to the contrary.

Further, in light of Defendants' delayed approach to discovery justice and fairness require this Court to award Plaintiffs an extension on the timing to file their Note of Issue and they are hereby awarded an additional sixty (60) days.

Based on the foregoing, it is hereby:

ORDERED, that Plaintiffs' Notice of Motion (MSN 003) is GRANTED to the extent detailed herein; and it is further

ORDERED, that Plaintiffs are awarded an adverse inference charge on the issues of the report and camera footage at the trial in this matter; and it is further

ORDERED, that Defendants shall be precluded at trial from offering evidence that would or would tend to rebut any adverse inference drawn against in relation to the Deneroff report and the security footage at the gymnasium; and it is further

ORDERED, that Plaintiff is awarded a sixty (60) day extension on filing their Note of Issue.

This constitutes a decision and order of this Court on Motion Sequence 003.