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 government sources, 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 NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. RICHARD TSAI 

Justice 

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BARBARA LOVIT, 

Plaintiff, 

- V -

NEW YORK CITY TRANSIT AUTHORITY, 

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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PART 

INDEX NO. 

MOTION DATE 

21 

151196/2022 

11/27/2023 

MOTION SEQ. NO. ___ 0_0_1 __ 

DECISION + ORDER ON 

MOTION 

The following 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 discovery sanctions against defendants, on the ground that defendants failed 

to preserve the bus video of the incident. Defendants oppose the motion. 

BACKGROUND 

In this action, plaintiff alleges that, on January 24, 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 of speed" causing her to 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, plaintiff suffered 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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Motion No. 001 

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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 driver stop 

short. She fell to the ground" (id.). 

On an additional page to the report, it states, 

"hit top part of head to the chair, right shoulder right hip as well. ... I didn't 

see any blood or any bruises on her body. Inspected interior of bus. 

Found no blood inside bus. Found no debris on the floor of bus. bus is 

equipped with cameras" (id.), 

In an "Incident Report" which states that it was to be completed by the subject 

"Vehicle Operator", the following is written in a portion titled "Description of Accident": 

"After servicing bus stop while pullin[g] out the Lady scream Let me get off I got 

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" of January 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 Brief also states that the "Before Status" was "In Service" and 

the "After Status" of the bus was "To Yard" (id.). 

In the portion of the OA brief titled "Recording Information," the following is listed, 

"Camera: Yes" (id.). Defendants do not dispute that this indicates "there being video 

cameras on the date of the subject accident" (affirmation of plaintiff's counsel in support 

of motion [NYSCEF Doc. No. 28] ,i 10). 

Defendants initially asserted that there were no "Photographs/ Video/Bus 

Camera Video" of the 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 any video footage from the bus from the incident on January 20, 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 New York City Transit Authority since December of 2017", 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 January and February of 2021, each day the DOBIC website was 

checked for new Manhattan and Bronx Surface Transit Operating 

Authority (OA) and New York City Transit Authority (TA) briefs (i.e.-

reports) concerning a bus involved in an accident/incident. If the brief 

indicated that cameras were on the bus and the download of the bus video 

was done via WiFi, a computer entry was made for the bus video to be 

downloaded via the WiFi system at the bus depot. 

After the 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 of 2021, 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 depot to download the bus video from 

Bus No. 6201 and other buses, however, when these attempts were made 

Bus No. 6201 was not available. 

In January and February of 2021, video footage from bus' cameras was 

routinely kept for approximately 20-30 days before the video footage was 

overwritten during normal operations of the bus. The bus video from Bus 

No. 6201 for the January 24, 2021 accident was not downloaded during 

this period and then was overridden" (id. ,-I,I 4-9). 

DISCUSSION 

"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. Where the 

evidence is determined to have been intentionally or wilfully destroyed, the 

relevancy of the 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" (Pegasus Aviation I, Inc. v 

Varig Logistica S.A., 26 NY3d 543, 54 7-48 [2015] [internal quotation 

marks and citations omitted]). 

With regard to spoliation of electronically 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 v Echostar Satellite 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 probability that it will 

become involved in litigation" (id. at 43). 

Here, on the day of the incident, defendants were on notice of a credible 

probability that plaintiff would bring a lawsuit against them for the injuries to her hip and 

right shoulder she allegedly suffered that day, which were revealed to be fractures, 

among other injuries (cf. Freienstein v Mandarin Oriental New York Hotel, LLC, 2014 

NY Slip Op 51213[U], 44 Misc 3d 1220[A] [Sup Ct, NY County 2014] [defendant alerted 

its general liability insurance carrier of the accident, took photographs of the scene, filed 

an incident report, paid for plaintiff's treatment at the hospital, convened a safety 

meeting with staff after the accident]). As was noted in the "Supervisor's 

Accident/Incident Report", plaintiff-described as in her 80s who had fallen-was taken 

away to the hospital by EMS, so defendants were aware that plaintiff's injuries were 

potentially very serious (Supervisor's Accident/Incident Report). Further, as noted in the 

Supervisor's Accident/Incident Report", plaintiff apparently told Supervisor Mirza that 

she fell because "the bus stop short" (id.). Thus, defendants were on notice that plaintiff 

believed that her injuries were caused by their negligence. 

Furthermore, it is reasonable to infer from 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 v Heskel's Riverdale, LLC, 223 AD3d 520, 521 [1st Dept 

2024]). Under the circumstances presented, the court finds that defendants' 

"destruction of the evidence was, at a minimum, negligent" (Macias v ASAL 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 for the spoliation of evidence" ( Golan v N. Shore Long Is. Jewish 

Health Sys., Inc., 14 7 AD3d 1031, 1032-33 [2d Dept 2017]). "[S]triking a pleading is a 

drastic sanction to impose in the absence of willful or contumacious conduct and, thus, 

the courts must consider the prejudice that resulted from the spoliation to determine 

whether such drastic relief is necessary as a matter of fundamental 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 of the ability to establish his or her case" (Pennachio v Costco 

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Wholesale Corp., 119 AD3d 662, 663 [2d Dept 2014] [internal quotation marks and 

emendation omitted]). 

Although plaintiff initially asks this court to strike defendants' answer or to 

determine liability in plaintiff's favor as a sanction for spoliation, the court finds that such 

sanctions would be too drastic, given that the spoliation was negligent, rather than 

willful, and because plaintiff can still prove her case without the bus video footage (see 

Clarke v Pavella, 210 AD3d 581,582 [1st Dept 2022] [finding that plaintiff's "grossly 

negligent" conduct in failing to preserve evidence did not warrant "the extreme sanctions 

of dismissal of the 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 the jury based on 1A PJl3d 1 :77.3, for defendants' negligent failure 

to preserve the video surveillance evidence of the subject incident (see Ferrer v Go 

New York Tours Inc., 228 AD3d 457 [1st Dept 2024] [affirming Supreme Court's grant of 

adverse inference charge as spoliation sanction for destruction of bus video footage of 

accident]). The precise formulation of the charge-including the specific issue(s) of the 

trial for which an adverse inference may be drawn-is left to the discretion of the trial 

judge (see Barlow v Skroupa, 221 AD3d 482, 483 [1st Dept 2023]). 

CONCLUSION 

Upon the foregoing documents, it is hereby by ORDERED that plaintiff's motion 

for discovery sanctions, pursuant to CPLR 3126, is GRANTED TO THE EXTENT that 

plaintiff shall be entitled to an adverse inference charge to the jury based on 1A PJl3d 

1 :77.3 due to defendants' negligent failure to preserve the bus video evidence of the 

subject accident, with the trial judge to determine the precise wording of the jury 

instruction ordered by this court, and the motion is otherwise denied. 

This constitutes the decision and order of the court. 

20240724113348RTS~D6BAE0CE6187C702ED5 

7/23/2024 

DATE 

CHECK ONE: 

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 

FIDUCIARY APPOINTMENT 

151196/2022 LOVIT, BARBARA vs. NEW YORK CITY TRANSIT AUTHORITY ET AL 

Motion No. 001 

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□ OTHER 

□ REFERENCE 

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