Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126. 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. In the absence of pending litigation or notice of a specific claim, a defendant will not be sanctioned for discarding items in good faith and pursuant to its normal business practices.
In this personal injury action, the plaintiff's cross-motion to strike the defendant's answer is denied. The plaintiff did not establish that the defendant was on notice that the evidence might be needed for future litigation at the time the surveillance footage was overwritten. The plaintiff did not notify the defendant of her claim or request that it preserve any surveillance footage until three months after the incident, by which time the surveillance footage had been automatically overwritten according to the defendant's normal business practices.
The defendant's preservation of only a portion of the surveillance footage does not indicate a culpable state of mind, as the defendant's representative, an assistant principal, averred in an affidavit that he saved the 51-second clip of the incident at issue consistent with ordinary business practices. The affidavit was sufficient to provide the court with a basis to find that the search for the surveillance footage had been thorough and that it had been conducted in a good-faith effort to give the footage to the plaintiff. Similarly, there is no evidence to indicate that the defendant was negligent in failing to preserve the additional surveillance footage. Moreover, the plaintiff did not demonstrate that the defendant's failure to preserve all of the surveillance footage fatally compromised her ability to prove her claim.
M.B. v. St. Francis Preparatory Sch., NY Slip Op 04651 (2d Dep't September 20 2023)
