Second Department Replaces Preclusion Penalty In Spoliation Decision With Adverse Inference Charge; Dissent Would Have Affirmed The Sanction Of Preclusion 

What exactly can serve as documentary evidence to support a CPLR 3211(a)(1)

Spoliation is the intentional or negligent loss, destruction, or alteration of evidence. When evidence is lost, destroyed, or altered, a sanction may be sought by the party seeking the evidence against the party responsible for the loss, destruction, or alteration of the evidence in question: a.k.a., the spoliator.  Horowitz, LexisNexis AnswerGuide New York Civil Disclosure § 26.01 (2026 Ed. LexisNexis Matthew Bender).  When it is determined that spoliation has occurred, the court must determine what penalty, if any, is warranted. 

In Battle v. Fulton Park Site 4 Houses, Inc., 2026 N.Y. Slip Op. 00114 (2d Dep’t 2026), the Second Department modified the penalty imposed by the motion court downward from an order precluding the spoliating party from adducing evidence in support of its defense to the issuance of an adverse inference to the jury at trial.  A separate opinion by Justice Barros concurred in part but would have affirmed the order of preclusion.

Spoliation cases are fact intensive, and the admissible proof of the events surrounding the alleged spoliation will determine first, whether a sanction is warranted, and second, if warranted, the nature of the penalty to be imposed:

The penalty to be imposed, if any, depends on the nature of the evidence and its relationship to the ability of a party to prove a claim or defense. See Gerber v. Rosenfeld, 18 A.D.3d 812, 795 N.Y.S.2d 463 (2005) (where a party destroys essential physical evidence “such that its opponents are ‘prejudicially bereft of appropriate means to confront a claim with incisive evidence, the spoliator may be sanctioned by the striking of its pleading’ (citations omitted). However, ‘where the evidence lost is not central to the case or its destruction is not prejudicial, a lesser sanction, or no sanction, may be appropriate’ (citation omitted)”). “[W]here the plaintiffs and defendants are equally affected by the loss of the items in their investigation of the accident and neither have reaped an unfair advantage in the litigation, it is improper to dismiss a pleading on the basis of spoliation of evidence.” De Los Santos v. Polanco, 21 A.D.3d 397, 799 N.Y.S.2d 776 (2d Dep’t 2005).

“The determination of whether a sanction is warranted is based on the extent that the spoliation prejudices the other party and whether the sanction is necessary as a matter of elementary fairness.” Tomkins v. Armstrong, 7 Misc. 3d 311, 793 N.Y.S.2d 736 (Sup. Ct. Kings County 2005).

Horowitz, LexisNexis AnswerGuide New York Civil Disclosure § 26.03 (2026 Ed. LexisNexis Matthew Bender).

Relevant facts in Battle were set forth by the Second Department:

Plaintiff was exiting a building owned or operated by the defendants when, according to the plaintiff, he pushed on a glass window in a door to open the door and the glass broke, lacerating his arm. Later that same day, Brianna Williams, an individual who worked for a security company employed by the defendants, viewed video surveillance footage allegedly depicting the subject incident. Based on those observations, Williams created an incident report, which stated that the plaintiff had broken the glass by punching it.

On these facts, the motion court “granted that branch of the plaintiff’s motion to the extent of precluding the defendants from offering any evidence at trial or on a motion for summary judgment regarding any observations made from the destroyed video surveillance footage.”

Justice Barros recited additional facts at length in his dissenting opinion:

On October 25, 2020, at approximately 3:00 a.m., the plaintiff, who was taking care of his mother who was a tenant in a building owned by the defendants, left the building through a door with a push bar and a glass window. The lock on the door was broken such that the door could be opened without pushing on the push bar. According to the plaintiff, he pushed on the “center right” of the glass with “light” force to open the door and the glass broke, resulting in a laceration to his arm requiring surgery. The plaintiff’s girlfriend was with him at the time of the incident, but she had exited through another door and had not seen the incident.

A security guard employed by CitySafe Partners, a security company, was regularly assigned as a security guard for the building. While doing a perimeter check later on the morning of the incident, the security guard observed the broken glass, reviewed video surveillance footage to see what had happened, and prepared an incident report, which stated that she observed someone “punching and breaking the glass.” The incident report included a still photograph of the door’s broken glass window. At her deposition in January 2023, the security guard had no independent recollection of viewing the video surveillance footage. She noted that “[a] lot of times, when these windows were broken, it was due to … fights that happened,” and she did not recall any incidents involving broken windows that were accidents. When asked to describe the person she saw in the video surveillance footage, the security guard stated that “I can’t recall the day of watching the video or even anything that might have happened in the video.”

The defendants’ site manager received a telephone call from the plaintiff’s mother, reporting that the plaintiff’s arm “went through” the glass of the door, causing “severe injury.” Upon learning of this information that potentially could lead to litigation, the defendants’ site manager went to the security office to inquire about the incident. The site manager spoke with the security guard, who reported that a person had punched the glass and that “she saw it on the camera footage.” The site manager did not inquire about the video surveillance footage of the incident, never viewed the video surveillance footage, and could not remember if she had asked the security guard to preserve it.

In general, when an incident occurred at the building that was depicted on video surveillance, the “procedure” was for the security company to “record the video and save it.” With respect to the subject incident, this procedure was not followed.

After reciting the law applicable to spoliation claims, the majority held that the defendant had an obligation to preserve the video evidence and:

[D]emonstrated that the defendants had control over the evidence, which was on their computer system until (citation omitted), that they negligently failed to preserve the video surveillance footage, and that the footage was relevant to the plaintiff’s claims (citations omitted). Accordingly, the plaintiff demonstrated that sanctions against the defendants were warranted for spoliation of evidence (citations omitted).

The Court then explained its rationale in holding the motion court improvidently exercised its discretion by ordering preclusion:

[T]his sanction disproportionately eliminated their defense to this action. Instead, under the circumstances, including the negligent, rather than intentional, destruction of the video surveillance footage and the degree of prejudice to the plaintiff, the court should have directed that an adverse inference charge be given against the defendants at trial with respect to the video surveillance footage of the incident (citations omitted).

Justice Barros concurred in the holding insofar as it determined defendant’s responsibility vis a vis the video, but took issue with the majority’s rationale:

Here, whether the evidence was intentionally or negligently destroyed is not relevant to the question of the appropriate sanction, since the defendants have made the video surveillance footage of the incident relevant. The defendants have possession and control of the broken door that caused the plaintiff’s injury and have preserved a still photograph of the door’s broken glass window. The defendants potentially had a choice of available defenses, including lack of actual or constructive notice of any defect. However, they made the video surveillance footage of the incident relevant by contending that it proved that the plaintiff was at fault, which they have made the crux of their defense.

This court in (citation omitted) applied the sanction of preclusion where, as here, the defendants’ defense was based upon observations of video surveillance footage of an incident that the defendants allowed to be erased due to their own negligence. This Court determined that “since the destruction of the evidence did not deprive the plaintiff of her ability to prove her claim so as to warrant the drastic sanction of striking the defendants’ answer, the appropriate sanction for the spoliation herein is to preclude the defendants from offering any evidence in this action regarding the alleged contents of the erased surveillance video” (citations omitted).

In this case, my colleagues in the majority, contrary to the determination in (citation omitted), would permit the defendants to rely on video surveillance footage of the incident, which they destroyed, by presenting testimony as to an opinion of the security guard that that video surveillance footage showed the plaintiff intentionally breaking the door’s glass window. Cross-examination of the security guard would have minimal value, since she testified at her deposition that she had no recollection of her observations. The security guard’s opinion may have been based upon pure speculation, but, since the video surveillance footage of the incident has been destroyed, we will never know.

Justice Barros concluded with his view of the appropriate sanction and the potential for encouraging spoliation by limiting the sanction to an adverse inference:

Allowing the defendants to use alleged observations of the video surveillance footage of the incident that they destroyed would reward negligent conduct and set a bad precedent that could encourage such conduct. An adverse inference charge could result only in confusion, since the jury would see the defendants present evidence favorable to them, to then be instructed that an adverse inference could be drawn against the defendants.

Under the facts of this case, limiting the sanction imposed to an adverse inference charge would not restore balance to the litigation (citation omitted) but, rather, would reward the spoliator. Accordingly, I would affirm the order insofar as appealed from.

This case review is long, as befits the importance of the facts, and the dueling opinions regarding the appropriate spoliation sanction.  What do you think was the appropriate sanction to impose for defendant’s spoliation?

Decision Date: January 14, 2026

Practical Practice Point:

It is crucial for practitioners to pay attention to the various sources of evidence at the initiation of litigation, in order to make a timely demand for preservation and retention of the evidence.  When a party fails to secure physical evidence, such as a video, the aggrieved party may successfully argue spoliation if it can establish control, notice and prejudice due to the failure to maintain the evidence.  “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 would support that claim or defense’” (Gregorian v New York Life Ins. Co., 211 AD3d 706, 709, quoting Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547; see Sanders v 210 N. 12th St., LLC, 171 AD3d at 968). “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” (Sanders v 210 N. 12th St., LLC, 171 AD3d at 968; see Tanner v Bethpage Union Free Sch. Dist., 161 AD3d 1210, 1211).” M.B. v St. Francis Preparatory Sch., 2023 NY Slip Op 04651 (2d Dep’t. 2023).

In reviewing an application for sanctions based on spoliation, the Battle, supra case highlights the court’s balancing of the prejudice due to spoliation with the ability for the offending party to present their case and will craft a sanction proportionate to these factors. 

Remember: Often a motion seeking sanctions due to spoliation is referred to the trial judge, who may be assigned months, if not years, after the initial motion.  Therefore, it is incumbent on counsel to renew the motion for sanctions due to spoliation upon trial assignment.  However, given that spoliation of evidence can have a significant impact on the course and content of disclosure, it is preferable to have a spoliation motion made and decided as soon after the aggrieved party becomes aware of it.

Point: Always review the trial judge’s Part Rules with regards to motions in limine, which spoliation motions can fall under, to ensure whether the motion must be filed pursuant to CPLR 2214 or by other method, whether it must be oral or in writing, and whether a ruling on it is requested before or after jury selection. Also note Rule 27 of the NYS Commercial Division (revised May 15, 2023), which sets forth the purposes for which a motion in limine can be made in the Commercial Division.