### Lovit v New York City Tr. Auth. 2024 NY Slip Op 32535(U) July 23, 2024 Supreme Court, New York County Docket Number: Index No. 151196/2022 Judge: Richard Tsai Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local governmentsources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 56 INDEX NO. 151196/2022 RECEIVED NYSCEF: 07/24/2024 

### SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY PRESENT: HON. RICHARD TSAI Justice

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BARBARA LOVIT, Plaintiff,

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- NEWYORK CITYTRANSITAUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY and JOHN DOE SAID NAME BEING FICTITIOUS AND UNKNOWN AT THIS TIME, Defendants.

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INDEX NO. MOTION DATE 21
151196/2022

11/27/2023 MOTION SEQ. NO.

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DECISION + ORDER ON MOTION

Thefollowing e-filed documents, listed by NYSCEF document number (Motion 001) 11, 27-46 were read on this motion to STRIKE PLEADINGS
In this action for personal injuries which allegedly occurred on a bus, plaintiff now moves for discoverysanctions against defendants, on the ground that defendants failed to preserve the bus video ofthe incident. Defendants oppose the motion. 

### BACKGROUND In this action, plaintiffalleges that, on January24, 2021, she was a passenger on an M-15 select bus when the bus "suddenly and violently stopped short without warning after having been traveling at an excessive rate ofspeed" causing herto fall and suffer serious injury (plaintiff's exhibit C in support of motion [NYSCEF Doc. No. 31] complaint 

# ,m 50-53). According to the bill of particulars, plaintiffsuffered a broken right femur and a displaced fracture of her right clavicle, among other injuries (see NYSCEF Doc. No. 11). On this motion, there is no dispute that, following plaintiff's fall, a "Supervisor's Accident/Incident Report" was taken, wherein "Supervisor Mirza" wrote that they "arrived scene at 15:00 PM" finding "EMS was on scene with customer inside. This was point of incident" (plaintiff's exhibit G [NYSCEF Doc. No. 35], Supervisor's Accident/Incident Report). On the line for "Others on Scene" the following is written: "Supt Gaddy, SLD Cintron, SLD Martinez" 

### (id.). In the portion titled "Investigation," the following is written: "Interviewed BO [bus operator]. She stated she was driving slow passing E56st/2Ave bus stop no one at the bus stop. She heard the bell ring she
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stop the bus. female[e] customer approximately in her 80's was standing middle part of bus fell to the ground BO called for assistance

.

. . . Interviewed the femal[e] customer. She stated that she push the bell to stop the bus. She was standing middle part of bus. bus driverstop short. She fell to the ground" 

### (id.). On an additional page to the report, it states, "hittop part of head to the chair, right shoulder right hip as well.

... Ididn't see any blood or any bruises on her body. Inspected interior ofbus. Found no blood inside bus. Found no debris on the floor ofbus. bus is equipped with cameras" 

### (id.), In an "Incident Report" which states that it was to be completed bythe subject "Vehicle Operator", the following is written in a portion titled "Description ofAccident": "After servicing bus stop while pullin[g] outthe Lady scream Let me get off Igot startle[d] and applied the brake. The Lady [illegible] her leg" (plaintiff's exhibit G [NYSCEF Doc. No. 35], Incident Report). "OA Brief#460," with an "Approved Date/Time" ofJanuary 24, 2021 at 21 :37, states that EMS "removed female to hospital" (plaintiff's exhibit H [NYSEF Doc. No. 36], OA Brief#460). The OA Briefalso states that the "Before Status" was "In Service" and the "After Status" ofthe bus was "To Yard" 

### (id.). In the portion ofthe OA brieftitled "Recording Information," the following is listed, "Camera: Yes" 

### (id.). Defendants do not dispute that this indicates "there being video cameras on the date ofthe subject accident" (affirmation of plaintiff's counsel in support ofmotion [NYSCEF Doc. No. 28] 

### ,i 10). Defendants initially asserted that there were no "Photographs/Video/Bus CameraVideo" ofthe accident (defendant's Exhibit G [NYSCEF Doc. No. 35, defendants response to plaintiff's April 26, 2022 Combined Demands). However, on or about February 22, 2023, defendants later provided an affidavit from Tatiana Morales, who clarified that anyvideo footage from the bus from the incident on January20, 2021 had been overridden (plaintiff's exhibit J in support of motion [NYSCEF Doc. No. 38], Morales affidavit). Morales stated that she was a "Video Data Manager" for "SAFEFLEET, which is contracted with NewYork City Transit Authority since December of2017", and that her responsibilities include searching for and providing "bus video" upon request (Morales affidavit

### ,i,i 1-3). In reference to the bus video at issue here, Morales further stated:

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"In Januaryand February of2021, each daythe DOBIC website was checked for new Manhattan and Bronx Surface Transit Operating Authority (OA) and NewYork CityTransit Authority (TA) briefs (i.e.- reports) concerning a bus involved in an accident/incident. Ifthe brief indicated that cameras were on the bus and the download ofthe bus video was done via WiFi, a computer entrywas made for the bus video to be downloaded via the WiFi system at the bus depot. Afterthe request is entered into the computer system, the bus video would be downloaded via the bus depot's WiFi system when the bus was at the depot. During January and February of2021, Bus No. 6201 was stationed out of the Mother Clara Hale Bus Depot, which did not have a WiFi system during this time period. Since the Mother Clara Hale Bus Depot did not have a WiFi system attempts were made to go to the depotto download the bus video from Bus No. 6201 and other buses, however, when these attempts were made Bus No. 6201 was not available. In Januaryand February of2021, video footage from bus' cameras was routinely kept for approximately 20-30 days before the video footage was overwritten during normal operations ofthe bus. The bus video from Bus No. 6201 forthe January 24, 2021 accidentwas not downloaded during this period and then was overridden" 

### (id. 

## ,-I,I 4-9). DISCUSSION "A partythat seeks sanctions for spoliation ofevidence must showthat the party having control overthe 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 ordefense such that the trier offact could find that the evidence would support that claim ordefense. Where the evidence is determined to have been intentionally orwilfully destroyed, the relevancy ofthe destroyed documents is presumed. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party's claim or defense" (PegasusAviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547-48 [2015] [internal quotation marks and citations omitted]). With regard to spoliation ofelectronically stored information-which is what the bus video footage is-it is well settled that once a party "'reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in

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place a 'litigation hold' to ensure the preservation of relevant documents" (VOOM HO Holdings LLC vEchostarSatellite L.L.C., 93 AD3d 33, 36 [1st Dept 2012], quoting Zubulake v UBS Warburg LLC, 220 FRO 212 [SONY 2003]). A party can be said to reasonably anticipate litigation, when it is "on notice of a credible probabilitythat it will become involved in litigation" 

### (id. at 43). Here, on the day ofthe incident, defendants were on notice ofa credible probabilitythat plaintiffwould bring a lawsuit against them forthe injuries to her hip and right shouldershe allegedly suffered that day, which were revealed to be fractures, among other injuries (cf. Freienstein vMandarin OrientalNew YorkHotel, LLC, 2014 NY Slip Op 51213[U], 44 Misc 3d 1220[A] [Sup Ct, NY County 2014] [defendant alerted its general liability insurance carrier ofthe accident, took photographs ofthe scene, filed an incident report, paid for plaintiff's treatment at the hospital, convened a safety meeting with staffafterthe accident]). As was noted in the "Supervisor's Accident/Incident Report", plaintiff-described as in her 80s who had fallen-was taken awayto the hospital by EMS, so defendantswere aware that plaintiff's injuries were potentiallyvery serious (Supervisor'sAccident/Incident Report). Further, as noted in the Supervisor's Accident/Incident Report", plaintiffapparentlytold Supervisor Mirza that she fell because "the bus stop short" 

### (id.). Thus, defendants were on notice that plaintiff believed that her injuries were caused bytheir negligence. Furthermore, it is reasonable to inferfrom the fact that defendants attempted to preserve the video footage (see Morales affidavit

# ,m 5-8) that defendants reasonably anticipated litigation. Thus, the factual record establishes that, although defendants were "on notice that the video surveillance footage might be needed for future litigation, defendant[s] nevertheless failed to take affirmative steps to preserve the footage, which was then automatically erased" (Fata vHeskel's Riverdale, LLC, 223 AD3d 520, 521 [1st Dept 2024]). Underthe circumstances presented, the court finds that defendants' "destruction ofthe evidence was, at a minimum, negligent" (Macias vASAL Realty, LLC, 148 AD3d 622, 622 [1st Dept 2017]). On this motion, there is no dispute that bus video footage would be relevant to determining defendants' liability. "The Supreme Court has broad discretion in determining what, if any, sanction should be imposed forthe spoliation ofevidence" (Golan vN. Shore Long Is. Jewish Health Sys., Inc., 147AD3d 1031, 1032-33 [2d Dept 2017]). "[S]triking a pleading is a drastic sanction to impose in the absence ofwillful or contumacious conduct and, thus, the courts must considerthe prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matteroffundamental fairness" (Peters v Hernandez, 142 AD3d 980, 981 [2d Dept 2016] [internal quotation marks omitted]). "A less severe sanction or no sanction is appropriate where the missing evidence does not deprive the moving party ofthe ability to establish his or hercase" (Pennachio v Costco

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Wholesale Corp., 119AD3d 662, 663 [2d Dept2014] [internal quotation marks and emendation omitted]). Although plaintiff initially asks this court to strike defendants' answer orto determine liability in plaintiff's favor as a sanction forspoliation, the courtfinds that such sanctions would be too drastic, given thatthe spoliation was negligent, ratherthan willful, and because plaintiffcan still prove her case withoutthe bus video footage (see Clarke vPavella, 210 AD3d 581,582 [1st Dept2022] [finding that plaintiff's "grossly negligent" conduct in failing to preserve evidence did notwarrant "the extreme sanctions ofdismissal ofthe complaint or preclusion" but rather "an adverse inference charge at trial is sufficient and appropriate"]). Rather, the more appropriate sanction is that plaintiff is entitled to an adverse inference charge to thejury based on 1A PJl3d 1:77.3, for defendants' negligentfailure to preserve the video surveillance evidence ofthe subject incident (see FerrervGo New York Tours Inc., 228 AD3d 457 [1st Dept2024] [affirming Supreme Court's grant of adverse inference charge as spoliation sanction for destruction ofbus video footage of accident]). The precise formulation ofthe charge-including the specific issue(s) ofthe trial forwhich an adverse inference may be drawn-is leftto the discretion ofthe trial judge (see BarlowvSkroupa, 221 AD3d 482, 483 [1st Dept2023]). CONCLUSION Upon the foregoing documents, it is hereby by ORDERED that plaintiff's motion for discoverysanctions, pursuantto CPLR 3126, is GRANTED TO THE EXTENTthat plaintiffshall be entitled to an adverse inference charge to thejury based on 1APJl3d 1:77.3 due to defendants' negligentfailure to preserve the bus video evidence ofthe subject accident, with the trialjudgeto determine the precise wording ofthejury instruction ordered bythis court, and the motion is otherwise denied. This constitutes the decision and order ofthe court.

20240724113348RTS~D6BAE0CE6187C702ED5 7/23/2024

DATE CHECKONE: RICHARD TSAI, J.S.C.

APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARYAPPOINTMENT

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