                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     521828
________________________________

GLORIMAR ATILES et al.,
                    Appellants,
      v
                                            MEMORANDUM AND ORDER
GOLUB CORPORATION et al.,
                    Respondents.
________________________________


Calendar Date:   May 27, 2016

Before:   McCarthy, J.P., Rose, Devine and Aarons, JJ.

                             __________


      E. Stewart Jones Hacker Murphy, Latham (James E. Hacker of
counsel), for appellants.

      Carter, Conboy, Blackmore, Maloney & Laird, PC, Albany
(Jonathan E. Hansen of counsel), for respondents.

                             __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Ferreira, J.),
entered July 9, 2015 in Albany County, which, among other things,
partially denied plaintiffs' motion to compel certain discovery.

      Plaintiff Glorimar Atiles fell in one of defendants'
stores. Atiles and her spouse, derivatively, thereafter
commenced this negligence action against defendants seeking
damages based on Atiles' injuries. Following joinder of issue
and plaintiffs' discovery demands, defendants provided certain
video surveillance that included footage prior to, during and
after Atiles' accident, but which did not contain footage
covering the full 24-hour period after the accident, as
plaintiffs had requested. Thereafter, plaintiffs moved, pursuant
to CPLR 3124, to compel defendants to produce, among other
                              -2-                521828

evidence, video surveillance of the two hours following Atiles'
fall or, in the alternative, for Supreme Court to issue an
adverse inference charge. Defendants cross-moved for a
protective order and to compel other discovery. The court, among
other things, denied plaintiffs' motion to the extent that it
sought to compel production of the additional video surveillance
or, in the alternative, for an adverse inference charge and
denied defendants' cross motion. Plaintiffs appeal.

      Plaintiffs' sole contention properly before this Court is
that Supreme Court erred in denying an adverse inference charge
based on defendants' failure to produce a video of the full two-
hour period after the accident.1 "[T]rial courts possess broad
discretion to provide proportionate relief to a party deprived of
lost or destroyed evidence" (Pegasus Aviation I, Inc. v Varig
Logistica S.A., 26 NY3d 543, 551 [2015]; see Weiss v Bellevue
Maternity Hosp., 121 AD3d 1480, 1481 [2014]; Merrill v Elmira
Hgts. Cent. School Dist., 77 AD3d 1165, 1166 [2010]). "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


    1
        To the extent that plaintiffs' briefs can be construed as
arguing that they are entitled to sanctions based on defendants'
failure to preserve the preincident video from other cameras, we
note that plaintiffs did not raise that issue in their motion
before Supreme Court. Notably, plaintiffs limited their motion
to the issue of the "two . . . hours of surveillance video taken
after [Atiles'] accident." Thus, defendants would have perceived
no reason to create a factual record in regard to other video
cameras, or the lack thereof, in the store. Given that
defendants were provided with no opportunity to counter the claim
that they spoliated evidence based on the destruction of the
preincident video from other cameras, we cannot properly consider
that argument for the first time on appeal (see Albany Eng'g
Corp. v Hudson River/Black Riv. Regulating Dist., 110 AD3d 1220,
1223 [2013]).
                              -3-                521828

would support that claim or defense'" (Pegasus Aviation I, Inc. v
Varig Logistica S.A., 26 NY3d at 547, quoting VOOM HD Holdings
LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [2012] [adopting
the then-federal standard of review for a motion for spoliation
as set forth in Zubulake v UBS Warburg LLC (220 FRD 212, 220 [SD
NY 2003] [internal quotation marks and citation omitted]). When
the party seeking sanctions establishes that the evidence was
"intentionally or wil[l]fully destroyed, the relevancy of the
destroyed documents is presumed" (Pegasus Aviation I, Inc. v
Varig Logistica S.A., 26 NY3d at 547).

      Plaintiffs failed to establish a prima facie case for
entitlement to sanctions. Although it is uncontested that
defendants are not in possession of any video of the scene of the
accident for the full two-hour period after the accident,
plaintiffs failed to put forth any evidence establishing why the
video was not preserved. More specifically, the record contains
no evidence related to the maintenance, or lack thereof, of any
video related to the security cameras and explanation for how the
disputed video came to be lost or destroyed. Therefore,
plaintiffs failed to prove that defendants intentionally or
willfully destroyed the video while under obligation to preserve
it (see id. at 554). Accordingly, and regardless of whether
plaintiffs proved some lesser culpable mental state, they
retained the burden of proving the relevancy of the portion of
the video that they did not receive (see id. at 547-548).

      Plaintiffs' sole argument as to the relevancy of the
disputed footage is that "the video is relevant as there is no
depiction or disclosure of who cleaned up the spill, therefore
there was no opportunity to depose, question or otherwise obtain
the observations of the people in the best position to testify to
[the] size, consistency or appearance of the substance on the
floor." Plaintiffs' contention, however, is contradicted by the
video evidence that defendants provided, which depicts the scene
of the fall from approximately 24 hours before the accident until
approximately eight minutes after Atiles' fall. The video
depicts that, after Atiles fell, two employees stooped down and
proceeded to wipe the floor in the area of the accident.
Thereafter, the employees who were gathered at the scene of the
accident removed Atiles' cart and then dispersed, leaving the
                               -4-                521828

area open to customer traffic. The deposition testimony of the
co-manager of the store on the day in question, who responded to
the accident, confirmed what is apparent from the video itself —
that the "spill was already cleaned up" at the point at which the
disclosed video concludes. Accordingly, no reasonable view of
the evidence supports plaintiffs' contention that the video that
defendants provided did not depict who cleaned up the substance
on the floor or that plaintiffs were deprived of a full
opportunity to depose witnesses who observed the substance upon
which Atiles allegedly fell.

      Further, given the cleaning efforts depicted, even if a
later video depicted additional employees who arrived at or
passed by the scene of the accident, those employees would not
have personal knowledge about the condition of the floor at the
time of Atiles' fall (compare VOOM HD Holdings LLC v EchoStar
Satellite L.L.C., 93 AD3d at 47 [finding that destroyed records
were relevant when they were from a "vital time period" in
relationship to a breach of contract dispute]; Zhi Chen v
District of Columbia, 839 F Supp 2d 7, 13 [DC 2011] [destroyed
security footage relevant where it would have depicted the events
during the time period in which the plaintiff claimed to have
been illegally searched and detained]). As the video that
defendants provided unambiguously contradicts plaintiffs'
contention that later video footage would be relevant to their
trial preparation,2 we find that this evidence was not "relevant
to [plaintiffs'] claim . . . such that the trier of fact could
find that the evidence would support that claim" (Pegasus
Aviation I, Inc. v Varig Logistica S.A., 26 NY3d at 551 [internal
quotation marks and citation omitted]; cf. Stanojev v Ebasco
Servs., Inc., 643 F2d 914, 923-924 [2d Cir 1981] [destroyed
personal records not relevant where the records pertained to a
time period unrelated to the plaintiff's claim]; Lacey v Target
Corp., 2015 WL 2254968, *9, 2015 US Dist LEXIS 62643, *23-25 [ED
NY, May 13, 2015, No. 13-CV-4098 (RML)]; Simoes v Target Corp.,


     2
        Plaintiffs make no argument that lost or destroyed video
footage, recording a period after all facts related to the
alleged tort had or had not occurred, would be admissible
evidence at trial.
                              -5-                  521828

2013 WL 2948083, *6, 2013 US Dist LEXIS 83896, *19-21 [ED NY,
June 14, 2013, No. 11-CV-2032 (DRH/WOW)]; Centrifugal Force, Inc.
v Softnet Communication, Inc., 783 F Supp 2d 736, 744 [SD NY
2011]; Schwarz v FedEx Kinko's Off., 2009 WL 3459217, *10, 2009
US Dist LEXIS 100200, *24-30 [SD NY, Oct. 27, 2009, No. 08-CV-
6486 (THK)]).

     Rose, Devine and Aarons, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
