Claimant's motion for spoliation sanctions was denied as he failed to establish the date by which the defendant knew of should have known to preserve the prison video or the circumstances of its destruction.
|Claimant(s):||STEPHEN FOX, #06A0135|
|Claimant short name:||FOX|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Stephen Fox, Pro Se|
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 14, 2018|
|See also (multicaptioned case)|
Claimant, proceeding pro se, moves for the imposition of sanctions for spoliation of evidence.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), was granted permission to file and serve a late claim seeking damages for injuries allegedly sustained when he was extracted from his cell and "yanked" and "dragged" through the prison facility while in mechanical restraints (claim, ¶¶7,8). The Court found that although claimant's proposed cause of action for excessive force was barred by the statute of limitations, (CPLR 215 ), his proposed negligence causes of action for injuries arising from the manner in which correction officers transported him, and DOCCS' alleged failure to provide medical treatment, were not so barred.
Claimant asserts in support of his motion that a video camera was operated on the date of the incident to record him being extracted from his cell and transported through the prison. He also indicates that defense counsel "never produced the audio & video during discovery demand saying 'It does not exist' " (affidavit of Stephen Fox sworn to Dec. 7, 2017, ¶ 6).
Defendant's procedural objection to the instant motion on the ground claimant did not include a notice of motion as required by CPLR 2214 (a) is rejected. The motion filed with the Court includes a notice of motion and the claimant's affidavit of service reflects service on defense counsel. Nevertheless the motion must be denied at this juncture because claimant has failed to attach a copy of his demand for the video(s), defendant's response thereto, or any documentation establishing the date on which the video was destroyed and the circumstances of its destruction. As succinctly stated by the Appellate Division, Second Department, in Eksarko v Associated Supermarket, 155 AD3d 826, 828 [2d Dept 2017]):
" '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 Logistica S.A., 26 NY3d 543, 547  [internal quotation marks omitted]; see Golan v North Shore-Long Is. Jewish Health Sys., Inc., 147 AD3d 1031, 1032 ). 'Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed [evidence] is presumed' (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d at 547, citing Zubulake v UBS Warburg LLC, 220 FRD 212, 220 [SD NY 2003]). 'On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence] [was] relevant to the party's claim or defense' " (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d at 547-548).
Defendant's contrary representation notwithstanding, to the extent claimant alleges the defendant was negligent in the manner in which the correction officers transported him through the prison, the video recording of this event is obviously relevant. Even if it were assumed that the video was destroyed, however, the Court is unable to determine whether or not the defendant had an obligation to preserve it at the time of its destruction. Neither the date by which the defendant knew or should have known to preserve the video nor the circumstances of its destruction were established.
Accordingly, claimant's motion is denied.
June 14, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The following papers were considered:
1. Notice of Motion, undated;
2. Affidavit of Stephen Fox in support of motion sworn to Dec. 7, 2017;
3. Affirmation of Christina Calabrese dated March 27, 2018, with Exhibits A and B.