Opinion
Index No. 706758/2019 Motion Seq. No. 001
01-12-2022
DONELL RICHARDSON, Plaintiff, v. SUPERIOR REDDING HOLDING, LLC, and SUPERIOR REDDING HOTEL, LLC, Defendants.
Unpublished Opinion
Motion Date: 08/16/2021.
PRESENT: Donna-Marie E. Golia, JSC.
DECISION & ORDER
Donna-Marie E. Golia, Judge:
The following electronically filed papers numbered EF15 to EF35 read on this motion by Donell Richardson ("plaintiff') to strike defendant Superior Redding Holding, LLC's ("defendant") answer for spoliation of evidence, or, in the alternative, to preclude defendant from offering any evidence on the issue of liability and deeming all issues of liability resolved in plaintiffs favor:
Papers Numbered
Notice of Motion, Affirmation, Exhibits......................................... EF15 - EF25
Affidavit in Opposition, Exhibits................................................ EF28 - EF33
Affidavit in Reply, Exhibit.......................................................... EF34-EF35
In this action to recover for personal injuries plaintiff allegedly sustained on December 20, 2018 in a slip-and-fall incident that occurred at Travelodge by Wyndham Ozone Park ("Travelodge") located at 137-30 Redding Street, Ozone Park, New York 11417, which at the time was owned and operated by defendant, plaintiff moves to strike defendant's answer for spoliation of surveillance footage evidence or in the alternative, seeks to preclude defendant from offering any evidence on the issue of liability, determining that "all issues of liability [be] resolved in plaintiff's favor." Defendant opposes the motion. To date, defendant Superior Redding Hotel, LLC has not appeared in the action. Upon the papers submitted, the plaintiffs motion is decided as follows:
On the date of incident, plaintiff was employed as a Residential Aid for Children's Community Services ("CCS"), a non-profit organization that was renting Travelodge to provide shelter services for NYC's homeless population. Plaintiff alleges that while walking into Travelodge, he was caused to slip and fall on rainwater as he was entering through the sliding glass door of the building. Plaintiff complains that his fall was caused, in part, by the failure of defendant to place a floor mat at the entrance of the building while it was raining, which created a dangerous and slippery condition. As was protocol, plaintiff filed an incident report about his fall with his employer CCS at or about the time of the incident. At some point within 30 days, CCS sent an investigator to the hotel to view video surveillance regarding the incident. The investigator, Raful Laguda, recorded the video surveillance footage of plaintiffs fall using his cellular phone.
Thereafter, plaintiff filed this action on April 16, 2019 and served defendant's general manager Donna Daly on April 24, 2019. Prior to the commencement of the action, plaintiff requested, by letter addressed to Ms. Daly dated February 8, 2019, that defendant preserve "all video tapes, surveillance and/or digital images taken in the entrance and lobby" from December 20, 2018 between 4:00 pm and 9:00 pm. Thereafter, on July 18, 2019, plaintiff made a formal demand for the video surveillance footage pursuant to the CPLR. In its response, defendant stated that it was not in possession of any video surveillance footage, rather, they believed plaintiffs employer, CCS, was in possession of the surveillance video.
Plaintiff now moves pursuant to CPLR 3126 to strike defendants answer or in the alternative, to impose other sanctions against defendant for spoliation of the videotape footage. Specifically, plaintiff contends that defendant was aware plaintiff had slipped and fallen while entering the hotel because CCS's investigator viewed the video in the general manager's office while the general manager was present. Thus, plaintiff claims, in essence, that the presence of the general manger while the investigator viewed and recorded the video of plaintiffs fall is sufficient to put the defendant on notice that a future litigation against them was probable such that they had a duty to preserve it.
In opposition, defendant argues that there are no legal or factual grounds to warrant striking its answer or to impose any spoliation sanctions. Defendant avers that it is standard procedure for their surveillance footage to automatically rerecord after 30 days. Defendant argues that plaintiffs incident occurred on December 20, 2018, and that they were not made aware of the incident until they received the letter from plaintiff on or about February 9, 2019, after the footage was overridden. Defendant claims that plaintiff continued to report to work every day after the incident, and that plaintiff did not report the incident to defendant or any of defendant's employees, and therefore, defendant was not put on notice.
Additionally, defendant argues that it is standard procedure for CCS to request to view surveillance footage without providing defendant with any explanation for their viewing because CCS was responsible for addressing issues involving their residents and employees. Defendant states that because of this procedure, its general manager, Donna Daly, did not ask the CCS investigator the reason for his inquiry and instead, continued her work obligations while their internal investigation took place. Moreover, defendant argues that the evidence plaintiff complains has been spoliated still exists, albeit in a second-generation form, since the investigator took a recording of the incident on his cellphone. Defendant claims that plaintiff has not established that the cellphone recording is insufficient to establish his claim or that the lack of the original video footage will disadvantage his case.
In its reply, plaintiff argues that defendant had a duty to preserve the surveillance footage as it is crucial to establishing its case. Plaintiff states that even if defendant's answer is not stricken, sanctions should be imposed because the cellphone recording of the incident only captures the camera pointed toward the interior vestibule and does not include footage from the camera pointed toward the exterior walkway which would prove the existence of a floor mat on the ground.
"A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a 'culpable state of mind,' and 'that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense"' (Pegasus Aviation I, Inc. v Varig Loqistica S.A., 26 N.Y.3d 543, 547 [2015], quoting VOOM HP Holdings LLC v Echo Star Satellite LLC, 93 A.D.3d 33, 45 [1st Dept 2012]). "A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence." (SM v Plainedge Union Free Sch. Dist., 162 A.D.3d 814 [2d Dept 2018]). Where the evidence was negligently destroyed, the party seeking sanctions must also establish that the destroyed evidence was relevant to the party's claim (see, jd.). The court has broad discretion in determining what sanctions, if any, should be imposed "even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation" (Doviak v Finkelstein & Partners, LLP. 137 A.D.3d 843, 846 [2d Dept 2016], quoting Biniachvili v Yeshivat Shaare Torah. Inc., 120 A.D.3d 605 [2d Dept 2014]).
Here, plaintiff has demonstrated that the video surveillance footage is relevant to his claim that he slipped and fell in the entryway of defendant's hotel and to establish whether there was a mat at the entryway of defendant's hotel at the time of his fall. There is no doubt that defendant had control over the video-surveillance footage at the time it was destroyed. It was not intentionally or willfully erased, but automatically overridden after 30 days, as was defendant's standard business practice. The crux of the issue here however, is whether defendant had a duty to preserve the surveillance footage at the time it was destroyed. Specifically, was the request by the CCS investigator to view and then re-view, for the purposes of recording the surveillance footage from the date and time of plaintiffs fall, enough to put the defendant on notice that there may be future litigation. Under the facts and circumstances of this case, the answer, in this Court's view is in the affirmative.
The relationship between plaintiff, his employer, CCS, and the defendant is unique. Both plaintiff and defendant's witness testified that they had no communication with each other regarding the circumstances of plaintiff's fall. Indeed, plaintiff testified that he never reported the incident to defendant. Instead, following his employer's protocol, plaintiff filed an incident report with CCS. Similarly, defendant, through its general manager, testified that CCS does not report any incidents to defendant. Rather, Ms. Daly testified that if there was an incident that needed to be investigated, CCS would send an investigator. Ms. Daly was familiar with CSS's investigator, Mr. Laguda, who had from time to time, asked to view video footage.
Regarding the instant matter, Ms. Daly testified that Mr. Laguda asked to view video of a specific date and time from a certain camera, but that she did not ask what and/or whom Mr. Laguda was investigating, nor did he offer any explanation. Although Ms. Daly testified that she played the video, she did not pay attention to the contents of the recording. She further testified, however, that she replayed the video surveillance so that Mr. Laguda could record what was depicted. Mr. Laguda did this with his cell phone as opposed to downloading the recording onto a thumb drive. Although there is no testimony that there was a specific conversation about the subject of this lawsuit, Ms. Daly's testimony established that she knew that CCS was investigating a fall at the hotel (Exhibit 1 Daly Tr. at pp 159-160, p 206). It stands to reason that if an investigator seeks to record video surveillance footage of a fall after viewing it, this should have alerted defendant that the viewed footage is important to a potential claim, and thus, ought to be preserved (see, SM v Plainedqe Union Free Sch. Dist., 162 A.D.3d 814 [2d Dept 2018]; Oppenheimer v City of New York. 193 A.D.2d 957 [2d Dept 2021]).
Although plaintiff has established that defendant had an obligation to preserve the surveillance video, he has failed to demonstrate that he been fatally deprived of his ability to establish his case (see, Favish v Tepler, 294 A.D.2d 396 [2d Dept 2002]). However, defendant's argument that plaintiff failed to establish that his case has been prejudiced by the destruction of the original video tape is unavailing. Indeed, defendant's testimony establishes that the cell phone recording is not complete in that the bottom portion of the screen which would have shown the floor and plaintiff's feet and potentially the existence of a mat at the front door is cut-off (Exhibit 1 Daly Tr. at pp 229-232). In addition, it appears from defendants testimony that there may have been another camera present on the date of the incident which would have captured the front entryway from a different vantagepoint (Exhibit 1 Daly Tr. pp 145-148).
Thus, under the circumstances of this case, the branch of plaintiffs motion pursuant to CPLR 3126 is granted to the extent of imposing an adverse inference charge against defendant at trial to be fashioned by the trial judge. The balance of plaintiffs motion is denied in all other respects.
This constitutes the Decision and Order of the Court.