Ware v Atlantic Towers Apt. Corp.

[*1] Ware v Atlantic Towers Apt. Corp. 2013 NY Slip Op 51177(U) Decided on July 19, 2013 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 19, 2013
Supreme Court, Kings County

Arlynn Ware, Plaintiff,

against

Atlantic Towers Apt. Corp., VINTAGE REAL ESTATE SERVICES, LTD., SLF MARBLE & GRANITE, CORP., OMNI BUILD, INC. and COMMERCIAL FLOORING CONTRACTORS CORP. D/B/A C.F.C. FLOR-ALL, Defendants.



10945/09



Plaintiff was represented by Nicholas Rose, Esq. Defendants Atlantic Towers Apt. Corp. and Vintage Real Estate Services, Ltd. were represented by Peter A. Cusumano, Esq. of Paganini, Cioci, Pinter, Cusumano & Farole. Defendant SLF Marble & Granite Corp. was represented by Christopher R. Invidiata, Esq. and Mark A. Healy, Esq. of Morris Duffy Alonso & Faley.

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on defendant SLF Marble & Granite Corp.'s motions for an order, and on plaintiff Arlynn Ware's cross-motion for an order, pursuant to CPLR 3126, based upon defendants Atlantic Towers Apt. Corp. and Vintage Real Estate Services, Ltd.'s spoliation of a surveillance video:

-Notice of Motion (Cal. No. 44, MS No.8) [Marked-Off]

Affirmation in Support

Exhibits A-J [*2]

-Amended Notice of Motion(Cal. No. 43, MS #9)

Affirmation in Support

Exhibits A-J

-Notice of Cross-Motion (Cal. No. 45, MS #11)

Affirmation

Exhibits A-C

-Affirmation in Opposition

Affidavit of Arlene Stern

Affidavit of Casey Mullin

Exhibits A-J

-Affirmation in Opposition to Plaintiff's Cross Motion

Exhibits A-E

-Memorandum of Law

-Reply Affirmation

-Preliminary Conference Order dated August 17, 2010

-Short-Form Order dated February 23, 2011

-Central Compliance Part Order dated April 12, 2011

-Short-Form Order dated October 24, 2011

-Short-Form Order dated May 21, 2012

-Short-Form Order dated January 23, 2013

-Short-Form Order dated June 3, 2013

Plaintiff was represented by Nicholas Rose, Esq. Defendants Atlantic Towers Apt. Corp. and Vintage Real Estate Services, Ltd. were represented by Peter A. Cusumano, Esq. of Paganini, Cioci, Pinter, Cusumano & Farole. Defendant SLF Marble & Granite Corp. was represented by Christopher R. Invidiata, Esq. and Mark A. Healy, Esq. of Morris Duffy Alonso & Faley.

Initially, defendant SLF Marble & Granite Corp. ("SLF") served two identical motions, and it appears that it only intended that the motion containing the "Amended Notice of Motion" be considered.

On April 20, 2008, plaintiff Arlynn Ware allegedly sustained personal injuries when she tripped and fell on premises allegedly owned and operated by defendants Atlantic Towers Apt. Corp. ("Atlantic") and Vintage Real Estate Services, Inc. ("Vintage").

In their respective motion and cross-motion, defendant SLF and Plaintiff contend that they are entitled to an order, pursuant to CPLR 3126(3), imposing a sanction upon Atlantic and Vintage for, among other things, spoliation of a video surveillance tape. Although Atlantic and Vintage are separate entities and separate defendants, the parties do not make any distinction between the two entities in any of the papers submitted on the motion and cross-motion. As such, for purposes of the motion and cross-motion, the Court will treat the entities as the same.

Plaintiff commenced the action by filing the Summons and Verified Complaint on May 4, [*3]2009. Defendants Atlantic and Vintage interposed their Verified Answer on or about September 30, 2009.

By Notice For Discovery and Inspection, served on August 16, 2010, Plaintiff demanded Defendants to produce, among other things, "videotapes, surveillance camera footage, moving pictures . . . and/or films which depict . . . (d) the incident in question".

A Preliminary Conference Order, dated July 12, 2010, also provided for the production of surveillance tapes, and "if none, an affirmation to that effect shall be provided". In their Response to Plaintiff's Combined Demands, dated September 14, 2010, as well as their Response to Preliminary Conference Order of the same date, defendants Atlantic and Vintage indicate that they "are not in possession" of any surveillance materials. Additionally, Atlantic and Vintage attached a copy of an Incident Report, dated April 20, 2008, indicating that Plaintiff's neighbor reported to "Lt. Alfred Tate" that Plaintiff fell in the lobby.

Disclosure orders, dated February 23, 2011, April 12, 2011, and October 24, 2011 do not address the issue of the existence of surveillance tapes.

At her deposition on September 1, 2011, Plaintiff testified that, among other things, she tripped over a "lip" or "bump" between the vestibule floor and the main lobby floor; that the lip or bump was located at the threshold of the doorway and was covered by duct tape; and that, at the time of the accident, she did not require the use of a walker to ambulate.

At an examination before trial on February 14, 2012, Alfred Tate, a porter employed by Atlantic, testified that there was a camera for the vestibule, a camera for the lobby, and a camera for the curb; that the monitors for the feeds were located in the security room of another building; that the security room was equipped with recording devices such as DVDs or CDs; that the video would automatically erase after 30 days; that in order to preserve footage, it would have to be saved on a DVD or CD; that he never observed any video footage of the incident; that he never attempted to determine whether the accident had been recorded, and was never instructed to make a search; and that he did not know whether any other person from Atlantic or Cambridge Security ever reviewed the footage.

At an examination before trial on February 28, 2012, Sotir Konomi, a principal of SLF, testified that the building's cleaning personnel informed him about Plaintiff's incident a few days after it occurred; that the cleaning personnel "were laughing because there was no accident"; that at some time, he went to the building where the security office was located, and the night security guard showed him video footage of the incident taken from four different cameras; that he did not know the name of the night security guard; that he watched the video four times; that upon viewing the video, he did not "pay attention" to where Plaintiff had her accident; that when he was watching the video he was "trying to understand where the accident was"; that the video showed "the walker in the front and the lady falling down by herself"; that Plaintiff "could not walk by herself"; that he saw Plaintiff go down "[o]n the carpet between the two doors" in the vestibule area; that he saw that she [*4]was entering the building; that Plaintiff did not fall, but "went down by herself" and had not yet opened the interior door; that Plaintiff was alone; that it "looked like she had dropped a key, so she went down to get the key to open the inside door"; that he did not see her drop keys; that he believed that the cause of her fall was "her health problems and her age that will not let her walk properly"; that he watched the video with "the security guard, the guy in charge"; that Arlene (former property or site manager) was not present when he watched the video; that he spoke with Arlene and she said that "we'll take care of it, don't worry about it"; that Arlene was laughing and told him that "this is not the first time they were going to sue us in the building"; and that at some time after the accident, but before he watched the video footage, Plaintiff approached him and asked him for his business card.

By Notice of Discovery and Inspection, dated March 5, 2012, defendant SLF demanded defendants Atlantic and Vintage to produce, among other things, copies of all videos showing Plaintiff, including a video showing Plaintiff enter the building on April 20, 2008 taken by the building security cameras.

A Centralized Compliance Part order, dated January 23, 2013, provides that defendant Atlantic and Vintage shall respond to SLF's Notice of Discovery and Inspection dated March 5, 2012 within 45 days.

By Response to Notice for Discovery and Inspection, dated March 7, 2013, defendants Atlantic and Vintage responded "upon information and belief", among other things, that they have "made a search for and have not been able to locate any video that may have existed with respect to the claimed accident"; that the property manager's case file was "destroyed by sewer and flood waters caused during the Sandy super storm"; and that "any CD or DVD that may have existed containing a video with respect to this accident would have been in that file and destroyed by the storm flood waters". Also, the Response indicates that Atlantic and Vintage were "not in possession of any contract with Cambridge Security that was in effect on April 20, 2008"; that they were not in possession of names of guards working on the date of the accident; and were not "aware of any written instructions or directions given to Cambridge".

In opposition to the motion, Atlantic and Vintage proffer, among other things, an affidavit of Arlene Stern, dated May 23, 2013, who avers that she is the "former property or site manager of Atlantic Towers"; that she was the property manager for 10 years, and that she retired in January 2011; that she became aware of Plaintiff's April 20, 2008 accident "at some point after said accident"; that she does not recall specifically when she became aware; that her "understanding" is that there was a surveillance system in place that was operated by its security company, Cambridge Security; that it was her "understanding that any recordings made by the system had to be extracted within thirty days or they would be automatically looped over or erased by new recordings"; that she "never saw any video DVD or CD which captured plaintiff's claimed accident"; that it is "her recollection that Atlantic Towers did not receive notification by an attorney on behalf of Ms. Arlynne Ware of any claims concerning her claimed fall of April 20, 2008 until several months after the date of said claimed accident"; that she "never became aware of the existence of any surveillance CD or [*5]DVD, claiming to have captured plaintiff's accident"; that she "never observed any such CD or DVD"; that she was "never told that such a CD or DVD existed"; that by the time Atlantic Towers "first received an attorney letter . . . [i]t would have been too late at that point to extract any surveillance video of the claimed accident onto a CD or DVD, as the equipment loops over within 30 days".

Atlantic and Vintage also submit an affidavit of Casey Mullin who avers that she is the current property or site manager for Atlantic; that she never "bec[a]me aware of the existence of any surveillance DVD or CD"; that she never observed any such DVD or CD; that if such a DVD or CD existed it would have been kept in a desk located at 1237 Avenue Z; that in October 2012, flood waters from Hurricane Sandy destroyed all the contents of such desk.

Notably, Arlene Stern's affidavit does not rebut Sotor Konomi's testimony that he spoke with her about the accident, and that they mentioned the probability of a lawsuit. She does not address Konomi's testimony that he observed surveillance footage shown to him by a night security guard, and does not address whether she ever saw the actual surveillance video footage. While she avers that she did not observe any DVD or CD of the surveillance footage, she provides no explanation as to why Atlantic or Vintage did not preserve such surveillance footage on DVD or CD. Also, she does not address Alfred Tate's testimony that he provided her with an incident report soon after the accident.

"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" (Samaroo v Bogopa Service Corp., 106 AD3d 713, 713 [2d Dept 2013] [internal quotation marks and citations omitted].) "When a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading". (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 718 [2d Dept 2009].)

"The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised the movant's ability to prove a claim or defense." (Mendez v La Guacatala, Inc., 95 AD3d 1084,1085 [2d Dept 2012] [internal citations, quotation marks, and brackets omitted]; see also Giuliano v 666 Old Country Road, LLC, 100 AD3d 960, 962 [2d Dept 2012].) The Supreme Court has broad discretion, and "may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the party was on notice that the evidence might be needed for future litigation." (See Samaroo v Bogopa Service Corp., 106 AD3d at 714 [internal citations, quotation marks and brackets omitted].)

"The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of the evidence, and the degree of prejudice to the opposing party." (Id.) "However, striking [*6]a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, thus, the courts must consider the prejudice that resulted from the spoliation to determine where such drastic relief is necessary as a matter of fundamental fairness." (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d at 718 [internal quotation marks, brackets and citations omitted].)

The evidence submitted by the parties sufficiently establishes that Atlantic and Vintage failed to preserve video surveillance footage by recording it on DVD or CD when it was on "notice of a credible probability" that they would become involved in litigation as a result of Plaintiff's accident. (See Suazo v Linden Plaza Associates, 102 AD3d 570, 570 [1st Dept 2013] [holding that "defendants' failure to take active steps to halt the process of automatically recording over 30-to-45-day-old surveillance video and to preserve it for litigation constituted spoliation"].) Atlantic and Vintage do not dispute Konomi's testimony that he learned about the accident from Atlantic and Vintage's cleaning personnel; that a night security guard working on the premises showed him the surveillance footage of the incident within days of the occurrence; that Konomi in fact discussed the incident and the probability of getting sued with Arlene Stern within days of the incident; that an incident report was prepared by Alfred Tate, an employee of Atlantic, soon after the incident; and that Tate testified that he submitted the incident report to Arlene Stern soon after it was prepared.

In weighing whether the spoliation of the surveillance video was willful or contumacious, the Court takes into consideration Atlantic's and Vintage's failure to adequately respond to disclosure demands and orders with respect to surveillance materials. Significantly, to date, Atlantic and Vintage have failed to provide the name of the subject night security guard who allegedly showed the footage to Konomi. Although their Response to Notice for Discovery and Inspection, dated March 7, 2013, indicates that a "search" was made to locate a DVD or CD of surveillance footage, Atlantic and Vintage do not set forth what steps were made at any time to preserve the video footage to CD or DVD, and what steps were made to search for DVD or CD of the footage. They do not set forth any steps they have made with respect to getting footage from their security contractor, Cambridge Security.

Also troubling is Atlantic's and Vintage's invoking Hurricane Sandy to explain the loss of "any" DVD or CD containing footage of the incident, when such DVD or CD would have been required by court order to have been exchanged more than two years prior to the hurricane. The excuse is misleading, disingenuous, and frivolous, especially in light of Atlantic and Vintage's prior disclosure responses indicating that they were not "in possession" of any DVD or CD depicting the incident.

In determining the appropriate sanction for Atlantic's and Vintage's spoliation, the Court must separately consider with respect to each of the movants the prejudice to each of them resulting from the loss of the surveillance footage.

With respect to defendant SLF, based upon Konomi's deposition testimony of what the video showed, SLF contends that it has been deprived of the only evidence that would have rebutted Plaintiff's testimony that she tripped over a door saddle covered by duct tape. SLF claims that the [*7]footage showed that Plaintiff fell or kneeled down as a result of her pre-existing physical conditions unrelated to any condition of the door saddle or flooring.

Although SLF does not address the issue specifically, its argument appears to presume that Konomi would not be permitted to testify as to his recollection of what the surveillance video showed. Atlantic and Vintage contend, without citation to any authority, that Konomi would be able to testify about the contents of the surveillance video, and, therefore, SLF's defense has not been impaired by reason of the absence of the footage.

The best evidence rule requires the production of an original where its contents are in dispute and sought to be proven. (See Schozer v William Penn Life Ins. Co. of New York, 84 NY2d 639, 643 [1994].) "The best evidence rule is intended to eliminate or reduce the spectre of deceit or perjury, potential inaccuracies attendant to human recall, or errors in crafting or recording a writing". (See Wagman v Bradshaw, 292 AD2d 84, 88 [2d Dept 2002]; see also Schozer v William Penn Life Ins. Co. of New York, 84 NY2d at 644.)

An exception to the best evidence rule allows for secondary evidence of the original where the proponent explains the unavailability of the original, and establishes that the secondary evidence "accurately and reliably portrays the original". (See Wagman v Bradshaw, 292 AD2d at 90.) "[T]he proponent of [such] derivative proof has the heavy burden of establishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal of the original." (Schozer v William Penn Life Ins. Co. of New York, 84 NY2d at 645.) With respect to oral testimony as the derivative proof, "the proponent of that proof must establish that the witness is able to recount or recite, from personal knowledge, substantial and with reasonable accuracy all of its contents." (See id. [internal quotation marks and citations omitted].)

The First Department has held that testimony about the contents of an unavailable video surveillance tape would violate the best evidence rule. (See People v Cyrus, 48 AD3d 150, 159 [1st Dept 2007] ["the officers' testimony concerning their observations of a poor quality videotape, depicting a crime they did not witness, would violate the best evidence rule"]; see also People v Jimenez, 8 Misc 3d 803, 804-06 [Sup Ct, Bronx County 2005] [applying best evidence rule to surveillance videotape].)

In People v Jimenez (8 Misc 3d 803), which is cited by the First Department in People v Cyrus (48 AD3d at 159) , the Supreme Court held that "the best evidence rule precludes a witness from testifying to an altercation he observed on a surveillance videotape in the absence of the tape". The Supreme Court distinguished videotape footage from photographs and X rays, and noted that with respect to videotape footage, "the witness' testimony would be no more than a summary of his interpretation of what he had seen on the tape and not a reliable and accurate portrayal of the original." The court noted that videotape is "literally thousands of images" with "innumerable details". As a result, the court precluded testimony, which it found could not possibly be accurate or reliable, about the contents of video footage as barred by the best evidence rule. [*8]

Even so, recently, in Suazo v Linden Plaza Associates, L.P. (102 AD3d at 571), the First Department found that the defendants failure to halt the automatic erasure of a surveillance videotape constituted spoliation, but found that the plaintiff was not left "prejudicially bereft of appropriate means to confront a claim [or defense] with incisive evidence" because "[a]t trial plaintiff may present testimony of the two deponents who viewed the video to establish that the assailants were not allowed into the building by a tenant". In so holding, the First Department cited only to Schozer v William Penn Life Ins. Co. of New York, but did not explain its application of the two-prong test for the exception to the best evidence rule in suggesting that the deponents would be allowed to testify as to certain observations of the unavailable video footage.

In Tomasello v 64 Franklin, Inc. (45 AD3d 1287, 1288 [4th Dept. 2007]), in considering a plaintiff's motion for spoliation sanctions against a defendant who lost a surveillance videotape containing footage of the plaintiff's slip and fall at the defendant's premises, the Fourth Department noted that the loss of the tape did not prevent the plaintiff from demonstrating a prima facie case of negligence against the defendant, and, significantly, that "plaintiff will have the opportunity, if so advised, to depose the individuals who viewed the surveillance videotape in question." Even so, the court stopped short of stating an opinion as to whether testimony about the contents of the videotape would be admissible at trial.

In People v Manohar (40 AD3d 1123 [2d Dept 2007]), the Second Department, which this Court is bound to follow, recognized that testimony about what is viewed on a surveillance tape violates the best evidence rule (see id., at 1123), but held that testimony may be admitted where the party who sought preclusion opens the door to such testimony (see id., at 1124).

The aforementioned caselaw, including appellate cases in both the First and Second Department, establishes that a proponent of testimony about the contents of an unavailable surveillance videotape must meet the two-prong test of the exception to the best evidence rule as set forth by the Court of Appeals in Schozer v William Penn Life Ins. Co. of New York ( 84 NY2d at 645), i.e., the proponent must sufficiently explain the unavailability of the videotape, and must meet a "heavy burden" in establishing that the testimony is a reliable and accurate portrayal of the original. (Id.)

Here, the first prong is easily met since the videotape is deemed unavailable by reason of spoilation by Atlantic and Vintage.

However, on this record, SLF does not carry the heavy burden of establishing that Konomi's testimony about what he observed on the videotape is reliable and accurate. Indeed, a review of Konomi's deposition testimony reveals that he was not able to "recount or recite, from personal knowledge, substantial and with reasonable accuracy all" (see Schozer v William Penn Life Ins. Co. of New York, 84 NY2d at 645) of the contents of the video. Unlike Suazo v Linden Plaza Associates, L.P. (102 AD3d at 571), in which the First Department permitted limited testimony regarding a specific observation that went to a discrete issue in that case; here, because of the multitude of issues, including the manner of Plaintiff's fall, the location of the fall, and the conditions of the premises, [*9]Konomi's self-serving summary of what he observed is inherently unreliable.

Since Konomi would be precluded by the best evidence rule from testifying about the contents of the video, SLF sufficiently demonstrates that it has been deprived of key and incisive evidence in support of its defense. In light of the prejudice to SLF, and Atlantic and Vintage's failure to proffer an adequate explanation as to its failure to preserve the footage, as well as their history of providing belated, evasive and incomplete disclosure responses with respect to the surveillance footage, SLF has sufficiently established that an order striking Atlantic's and Vintage's cross-claims as against it, is warranted.

With respect to Plaintiff, the loss of the video footage does not fatally compromise her ability to prove her claim. Plaintiff can still testify as to how the accident occurred. (See Giuliano v 666 Old Country Road, LLC, 100 AD3d at 962; Mendez v La Guacatala, Inc., 95 AD3d at 1085-86; Barone v City of New York, 52 AD3d 630, 631 [2d Dept 2008].)

Under similar circumstances where a defendant's conduct in failing to preserve a surveillance video is deemed to constitute spoliation, but where the plaintiff has been able to support the claims with the plaintiff's own testimony, courts have given an adverse inference charge at trial. (See Giuliano v 666 Old Country Road, LLC, 100 AD3d at 962; Mendez v La Guacatala, Inc., 95 AD3d at 1085-86; Barone v City of New York, 52 AD3d at 631.) However, although Plaintiff here seeks an adverse inference charge, she does not set forth what the adverse inference should be. Nor can the Court, at this time, craft such an adverse inference charge that would not prejudice SLF in its defense of Plaintiff's claims. Moreover, since the adverse inference charge may allow an inference contrary to Konomi's testimony about what he observed on the surveillance tape, it would be unfair to SLF who is barred by the best evidence rule in presenting Konomi's testimony about his observation of the video. However, the Court recognizes that circumstances may change such that an adverse inference charge may be appropriate at trial. (See e.g. Samaroo v Bogopa Service Corp., 106 AD3d at 713 [deferring determination of branch of motion seeking an adverse inference charge].)

In sum, defendant SLF Marble & Granite Corp.'s motion (Cal. No.44, MS #8) is marked off. Defendant SLF Marble & Granite Corp.'s motion (Cal. No. 45, MS #11) is granted only to the extent that Atlantic Towers Apt. Corp.'s and Vintage Real Estate, Ltd.'s cross-claims as against it are dismissed. The branch of Plaintiff's cross-motion (Cal. No. 43, MS #9) seeking to strike Atlantic's and Vintage's answer is denied. The branch Plaintiff's motion seeking an adverse inference charge is denied, with leave to renew at trial.

July 19, 2013

Jack M. Battaglia

Justice, Supreme Court