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September 30, 2014

New York Appellate Division Clarifies Spoliation Issues When Surveillance Video is not Preserved

The New York Appellate Division, First Department, clarified the obligation of a Defendant in preserving surveillance video when a preservation demand is made. In Duluc v. AC&L Food Corp., 2014 NY Slip Op 05243 (N.Y. App. Div. 1st Dep't, July 10, 2014), Plaintiff slipped and fell while shopping at Defendant's supermarket. One week after the incident, Plaintiff's attorney requested Defendant to "preserve any and all video recordings/surveillance tapes/still photos of any nature that depict the subject slip and fall accident."

Nilka Bermudez, Defendant's employee in charge of surveillance recordings, after reviewing the tapes from all cameras, preserved an 84-second portion of footage from one camera. The footage depicted the accident starting from one minute preceding the fall. Bermudez downloaded this footage onto a CD and forwarded it to Defendant's insurance carrier.

Six weeks after the initial request, Plaintiff's counsel expanded his demand to six hours of footage leading up to the accident, for all 32 cameras in the store. After discovery was completed, Defendants moved for summary judgment arguing that they did not create or have actual notice of the condition that allegedly caused Plaintiff to fall. Plaintiff cross-moved to strike Defendant's answer for withholding and destroying relevant video footage. The trial court granted Defendants' summary judgment motion and denied Plaintiff's cross-motion.

The Appellate Division affirmed, and reiterated that to establish spoliation sanctions, the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a "culpable state of mind" which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense. A Court should look to the extent that spoliation may prejudice a party and whether a particular sanction is necessary as a matter of fairness. Further, the burden is on the party requesting sanctions to make the requisite showing.

The Court noted that Plaintiff's initial demand was limited to footage that depicted "the subject slip and fall accident that took place." The Court found that the portion of footage preserved complied with this demand. Responding to the lone dissenting member, the Court stated that anti-spoliation responsibilities do not translate into an obligation on a Defendant to preserve hours of tapes indefinitely each time an incident occurs.

The majority and dissenting opinion demonstrate how spoliation sanctions turn on the facts and the judge's analysis of the record. The Duluc decision should encourage Defendants to pay particular attention to the language and timing of a preservation demands or requests, to ensure they are not at risk for spoliation sanctions. Clients/entities with surveillance equipment should also be aware that a Court will analyze the timeliness of a preservation request along with an entity's policy/procedure in safeguarding relevant footage.

If you require further information regarding the content of this Legal Alert, please contact Thomas B. Cronmiller, Chair of the Torts & Products Liability Defense Practice Area, at (585) 295-4424 or





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