Claimant's motion for spoliation sanctions is denied where claimant failed to show that the video footage in question was relevant to the claim, or that it was negligently destroyed. Claimant may renew his application at trial if the elements of spoliation are established at that time.
|Claimant(s):||E.L., an Infant, by his Mother and Natural Guardian, AMANDA SPIGNER|
|Claimant short name:||SPIGNER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Chopra & Nocerino, LLP
By: Sameer Chopra, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Edward J. Curtis, Jr., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 27, 2019|
|See also (multicaptioned case)|
In the instant action, claimant, E.L., seeks damages for injuries he is alleged to have sustained when a heavy door was closed on his hand at the New York City Children's Center (NYCCC). Specifically, claimant states in his pleading that a faculty member at the NYCCC slammed or shut claimant's hand in the door, resulting in the partial amputation of claimant's finger. The claim alleges that defendant was negligent in failing to provide certain safety devices on the door or take other safety measures, failing to provide adequate notice of the unsafe condition of the door, and for otherwise allowing a dangerous condition to exist.
Claimant now moves for sanctions for what claimant characterizes as the spoliation of video footage of the area in question. Specifically, claimant moves for an order striking defendant's answer, granting summary judgment to claimant on the issue of liability, or deeming notice admitted as to liability and/or precluding defendant from offering evidence in defense of this action on the issue of liability. Defendant opposes the motion and argues that it was not on notice to preserve the video footage following the incident in question, and that the video footage at issue does not depict the door in question, and thus is not relevant to the claim.
The incident in question took place on January 30, 2017 at approximately 10:45 a.m. in the first floor lobby area of the NYCCC (Verified Claim ¶ 3). Claimant's finger was slammed in a doorway as it was partially closed by a faculty member who failed to see that claimant was standing in the vicinity.
Claimant's grandfather, Keith Sawyer, "believe[s]" he visited the NYCCC on January 31, 2017 with claimant in order to find out how the incident occurred (Chopra Aff. Exh. U ¶ 8, hereinafter "Sawyer Aff."). He noticed "several" cameras in the hallway where the incident occurred, including one directly above the door that was shut on claimant's hand (id.). Mr. Sawyer "believe[s]" he spoke with Mr. Frantz Laurent and Dr. Alan Morgenthal about preserving the video footage in the building and that Mr. Laurent and Dr. Morgenthal acknowledged his request and said they would ask the proper people in charge of the video footage to investigate (id. ¶ 11).
By letters dated February 22, 2017 and sent by certified mail, return receipt requested, claimant requested that "all video surveillance for both the interior and exterior of [the NYCCC]" be maintained for the entire day of January 30, 2017. One letter was sent to the Attorney General in Albany, New York, and the return receipt indicates that it was received on February 28, 2017 (Chopra Aff. Exh. A). A second letter was sent to the NYCCC, and the return receipt indicates that it was received on March 1, 2017 (Chopra Aff. Exh. B). Additional letters were sent to the City of New York and the New York City Department of Education (see id.). The letter sent to the Attorney General's Office was treated as a Freedom of Information Law (FOIL) request. By letter dated March 7, 2017, the Attorney General's Office acknowledged receipt of the FOIL request. (Chopra Aff. Exh. C). On April 4, 2017, the Attorney General's Office responded to the FOIL request, and stated that it could not identify any responsive documents (see id.).
Claimant served a notice of intention to file a claim upon the Attorney General on March 2, 2017 (Chopra Aff. Exh. D). The instant claim was filed and served on July 28, 2017. Issue was joined on September 8, 2017.
An initial scheduling order was set by the Court on October 30, 2017. Thereafter, the Court issued a Second Scheduling Order on May 15, 2018. The Second Scheduling Order directed defendant to provide a response to claimant' s demands by June 15, 2018. Having received no response, claimant sent a good faith letter to defendant on July 23, 2018 requesting that defendant respond to claimant's discovery demands within two weeks (Chopra Aff. Exh. K). On July 24, 2018, defendant sent a letter to claimant stating that "no video camera covering the door" existed and that no other video footage of the time of the incident was kept by the NYCCC (Chopra Aff. Exh. L). On August 24, 2018, defendant served its response to claimant's discovery demands (Chopra Aff. Exh. M). On September 25, 2018, during a telephone conference with the Court, defendant agreed to provide claimant with an affidavit of good faith regarding the video footage. That same day, counsel for claimant provided defendant with a number of questions that he would like answered within the affidavit. Counsel for claimant also provided a photograph depicting a camera above the door in question.
Defendant provided an affidavit regarding the video footage to claimant's counsel on October 23, 2018 (Chopra Aff. Exh. O, hereinafter "McCauley Aff."). The affidavit was completed by Patricia McCauley, a Registered Nurse who is employed as the Risk Manager at the NYCCC. Ms. McCauley averred that the video footage of the camera identified in the photograph was not reviewed because it did not face the door or doorway that caused claimant's injuries (McCauley Aff. ¶ 9). During the investigation of the incident, Ms. McCauley asked Edgar Rosario, Safety Officer 1 at the NYCCC, if any cameras captured the doorway (id. ¶ 18). Mr. Rosario informed Ms. McCauley that no cameras faced the doorway (id.). The camera identified in the picture provided to Ms. McCauley by claimant's counsel faces down the hallway, away from the door (id. ¶ 20). Ms. McCauley further averred that no video footage was reviewed because there were no cameras that faced the door or doorway in question (id. ¶ 10). In sum, no video footage for the date of the incident was kept or reviewed (id. ¶¶ 12, 14). On May 31, 2017, Ms. McCauley received a memorandum from Mark Noordsy, Office of Mental Health Litigation Counsel, requesting that she preserve records regarding claimant's incident (id. ¶ 26). However, video footage is deleted after 30 days, therefore the video footage of the hallway from the date of the incident was deleted by the time Ms. McCauley received the letter from Mr. Noordsy (id. ¶¶ 28-29).
Pursuant to CPLR 3126, the Court may issue an order it deems appropriate, including striking a pleading, to a party who "wilfully fails to disclose information which the [C]ourt finds ought to have been disclosed[.]" "A party that seeks such 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 , quoting VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [1st Dept. 2012] [additional citation omitted]). A "culpable state of mind" for purposes of determining whether a spoliation sanction is warranted includes ordinary negligence (VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d at 45). However, "when the destruction of evidence is merely negligent . . . relevance must be proven by the party seeking spoliation sanctions" (id., [citation omitted]).
First, the Court notes that video footage from the NYCCC is deleted after 30 days (McCauley Aff. ¶ 28), and the letter that claimant's counsel sent to the NYCCC demanding that all video footage from January 30, 2017 be preserved was not received by the NYCCC until March 1, 2017, the thirtieth day following claimant's incident (Chopra Aff. Exh. B). While the Court questions the purpose of deleting video footage anywhere near an accident site within 30 days of an accident, even if Ms. McCauley had received the letter on March 1, 2017, it is unclear whether the video footage would have been already deleted by that time. Likewise, it is unclear whether the Attorney General's receipt of claimant's demand on February 28, 2017, one day prior to the date that the video footage was scheduled to be erased, would have enabled defendant to preserve the video footage. Although claimant also submits an affidavit from claimant's grandfather regarding his alleged request to preserve the video footage, the affidavit states only that claimant's grandfather "believe[s]" he visited the NYCCC on January 31, 2017 and that on that date he "believe[s]" that he spoke with staff about preserving the video (see Sawyer Aff. ¶¶ 8, 11). Mr. Sawyer's uncertainty regarding the alleged request to preserve the video footage leaves the Court unable to determine whether a request to preserve the video footage was made sooner than February 22, 2017, the date that claimant's counsel mailed letters requesting the preservation of video footage. Claimant also cannot establish that the NYCCC was on notice of potential litigation from the happening of the accident alone (Monteiro v R.D. Werner Co., Inc., 301 AD2d 636, 637 [2d Dept. 2003]).
Even if the Court were to find that a timely request to preserve the video footage was made and that the video was negligently destroyed, it is not clear that the video footage from the camera above the door, which faces away from the door, is relevant to the claim. Claimant's counsel vehemently argues that some video footage of the door must have existed despite defendant's production of a picture showing that the camera footage sought by claimant clearly faces down the hallway, away from the door (Chopra Aff. Exh. M; Curtis Aff. Exh. E). Claimant's counsel has provided no evidence other than his own assertions to show that video footage of the doorway in question existed. As an alternate argument, claimant argues that what happened in the hallway directly before the accident is relevant to the claim. To that end, claimant's counsel only states, without any sworn statements from witnesses, that "[c]laimant was said to be located and/or running immediately prior to the accident in that same hallway" (Chopra Aff. ¶ 20 n. 10).(1) It is claimant's burden to "demonstrat[e] that [defendant] . . . fatally compromised the movant's ability to prove a claim or defense" (Giuliano v 666 Old Country Rd., LLC, 100 AD3d 960, 962 [2d Dept. 2012]). In that regard, it is not clear based on the evidence before the Court that claimant will be "prejudicially bereft" of proving the claim at trial (see Suazo v Linden Plaza Assocs., L.P., 102 AD3d 570, 571 [1st Dept. 2013]). It appears from the evidence presented to the Court on this motion that the video footage in question did not capture the moment that claimant was injured, thus the Court cannot conclude that claimant's ability to prove his claim is "fatally compromised" (Mendez v La Guacatala, Inc. 95 AD3d 1084, 1085 [2d Dept. 2012]; see Chopra Aff. Exh. M).
The Court is mindful of the fact that the video footage may be relevant in light of the fact that claimant was approximately eight years old at the time of the accident and it is unclear at this time whether claimant will be able to give sworn testimony (see Perez v City of New York, 104 AD3d 661, 662 [2d Dept. 2013]). The Court would benefit from further explanation at trial as to the relevancy of the missing video footage to the claim, particularly in light of the fact that claimant has not submitted any sworn statements from witnesses of the incident aside from the infant claimant. Notably, neither claimant nor defendant have submitted sworn statements from the teacher who allegedly shut the door on claimant's fingers. The Court would also benefit from more information from Officer Rosario about the positions of the other cameras in the hallway, if any, along with testimony from Ms. McCauley, or other knowledgeable representative from the agency, about the policy for deleting video footage of the area adjacent to the accident site only 30 days thereafter. Additionally, a diagram or picture of the location of the "several cameras" noticed by claimant's grandfather during his visit to the school would have been helpful to the Court. Where as here, claimant has failed to show the relevance of the missing video footage, the Court declines to issue the harsh sanctions requested by claimant. Accordingly, the Court denies claimant's motion, without prejudice to renew the motion at trial should the elements of spoliation be established at that time (see Pennachio v Costco Wholesale Corp., 119 AD3d 662, 665 [2d Dept. 2014]).
Based upon the foregoing, claimant's motion (M-93297) is DENIED without prejudice to renewing his application at trial.
March 27, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated December 31, 2018; and Attorney Affirmation. affirmed by Sameer Chopra, Esq. on December 31, 2018, with Exhibits A through V annexed thereto.
2. Affirmation in Opposition, affirmed by Edward J. Curtis, Jr., AAG on January 9, 2019, with Exhibits A through E annexed thereto.
1. The Court acknowledges that claimant has submitted a "sworn statement" from the infant claimant (Chopra Aff. Exh. V). However, defendant challenges the infant claimant's testimonial capacity, which is an issue that cannot be decided on the instant motion (see Carrasquillo ex rel. Carrasquillo v City of New York, 22 Misc 3d 171, 172 [Sup Ct, Kings County 2008] ["To overcome the rebuttable presumption of incompetence to testify under oath, an infant must demonstrate sufficient intelligence and capacity to justify reception of his testimony and have some conception of obligations of an oath and consequences of giving false testimony."]; see also Strickland ex rel. Strickland v Police Athletic League, Inc., 22 Misc 3d 1107[A], 2009 NY Slip Op 50067[U], *2 [Sup Ct, Kings County 2009] [finding that an eight year old plaintiff did not demonstrate testimonial capacity prior to the taking of his deposition]).