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Slipped not Spoiled – Appellate Division Overturns Spoliation Charge in Slip and Fall Action (NY)

February 15, 2019

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In <a href="">Sarris v Fairway Group Plainview LLC</a>, plaintiff was allegedly injured when she slipped and fell on ice in a parking lot outside the store operated by defendant.  Her counsel sent a demand to defendant to preserve “any and all video footage depicting the location of my client’s accident” and the Supreme Court ordered them to “preserve such footage of the incident, including the 24 hours preceding same”.

The store had four separate security cameras.  The store’s security manager testified that one camera showed plaintiff’s accident.  Footage from that camera, including the ten hours preceding the accident, were preserved.  The footage from the other cameras was automatically deleted after 30 days, the normal protocol for the cameras.

Plaintiff moved for spoliation of evidence against defendants for deleting the other videos.  The Supreme Court partially granted the motion partially, allowing for a negative inference charge to be given at trial.  The Appellate Division ruled that the Supreme Court improvidently exercised its discretion and overturned the ruling.  The Court held that the defendant was not on notice to preserve the other footage because it was only ordered to preserve the footage of the actual accident.

The case provides a valuable lesson for all litigants.  First, direct your clients to save as much as possible, if not for anything else to avoid unnecessary discovery litigation.  Second, when making requests for discovery, be as specific as you are able to be.  If you want all the security footage a party has, say that, don’t limit it to the accident where it occurred.

Thanks to Christopher Gioia for his contribution to this post. Please email <a href="">Vito A. Pinto</a> with any questions.

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