The Second Department of the New York State Supreme Court Appellate Division issued two decisions in Phelps-Vachier v. Genovese Drug Stores, Inc. and Milazzo v. Best Mkt. on claims of spoliation of evidence.

Both Phelps and Milazzo were slip-and-fall cases where the defendants preserved a portion of surveillance footage that the plaintiffs deemed inadequate.

The Milazzo plaintiff alleged that she slipped and fell on a blueberry at a grocery store. The grocery store recorded and preserved approximately two minutes and 45 seconds of footage prior to the plaintiff’s fall and the fall itself. The remainder of footage was automatically overwritten 30 days later and unavailable during the litigation. The plaintiff argued for sanctions because the defendant failed to preserve an hour of footage prior to the fall.

The Phelps plaintiff alleged that she slipped and fell inside a pharmacy. The next day, the plaintiff’s counsel requested that the defendants preserve approximately five hours of footage. The defendant inadvertently preserved only 35 minutes of video footage starting 12 seconds before the accident instead.

In both decisions, the Court set forth the well-established rule for seeking sanctions due to spoliation: the party seeking sanctions must show that the party in control of the evidence (1) possessed an obligation to preserve it at the time of its destruction, (2) that the evidence was destroyed with a culpable state of mind (which includes ordinary negligence), and (3) 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.

The Court found that the plaintiffs in both cases failed to meet their burdens to establish sanctions. In Phelps, the Court held that the defendant had the duty to preserve the entire requested portion of the video but that the plaintiff failed to demonstrate that the absence of the longer footage deprived her of her ability to prove her claim. In Milazzo, the Court found that the plaintiff failed to establish that the defendant intentionally or negligently failed to preserve the video and that the failure deprived plaintiff of the ability to prove her claim.

Although Milazzo and Phelps employ similar reasoning to similar facts and reach similar results, the Phelps decision denied the sanctions motion with leave to renew at the end of discovery and the Milazzo decision did not.

This distinction may be explained by two possible factual distinctions.  First, the plaintiff in Phelps sent a preservation notice to the defendants the day after the alleged accident for all video three hours before and two hours after the fall. Milazzo, on the other hand, did not involve a preservation letter and the video had been automatically deleted prior to the commencement of litigation. Second, the Phelps motion was made before the close of discovery while the Milazzo motion was not. If the Phelps plaintiff does indeed renew its motion at the close of discovery, this may help to better define the scope of sanctionable conduct and timing of such motions. At a minimum, these cases serve as a reminder to send and appropriately respond to preservation notices.

Read the full decision in Phelps here.

Read the full decision in Milazzo here.

This alert is not a substitute for advice of counsel on specific legal issues.

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