Gogos v. Modell's Sporting Goods, Inc.

OPINION OF THE COURT Tom, J.P The issue raised on this appeal is whether Supreme Court appropriately directed a negative inference charge be given against — 250 — defendant at trial, for alleged spoliation of evidence, under the circumstances of this case. The complaint alleges that, on September 16, 2006, Elissavet Gogos fell on the second floor of defendant’s store due to a slippery condition on the tile floor located near a row of four cash registers. Upon defendant’s failure to respond to plaintiffs’ December 10, 2007 demand for copies of all relevant surveillance videos (CPLR 3101 [i]), plaintiffs obtained a court order in January 2008 directing production of the videotapes within 30 days. Defendants failed to comply. During an August 26, 2008 deposition, defendant’s general manager testified that the videotape for the date of the accident was placed in a safe in the store. However, the vice-president of defendant’s subsidiary, Modell’s II, thereafter submitted an affidavit, dated April 13, 2009, stating that defendant no longer retained the tapes and that “[n]o videotapes were created ... by [defendant] that would depict this area of the store or the plaintiffs accident.” The motion court properly exercised its discretion in granting plaintiffs’ motion, which sought to strike the answer for spoliation of evidence, to the extent of directing that an adverse inference charge be given against defendant at trial (CPLR 3126).* In finding that “no adverse inference charge is warranted,” the dissent misses two essential points: that violation of a court order is subject to sanction and that the adverse inference, if any, to be drawn against defendant for failure to produce evidence, as directed by the order, is a question for the trier of fact, not the court. Defendant was put on notice to preserve and produce the surveillance tapes, both by plaintiffs’ notice to produce and by the ensuing court order. The subsequent destruction of the tapes was a direct violation of the mandate of the court and deprived plaintiffs of the opportunity to view possible material evidence. To adopt the dissent’s position would invite parties to destroy trial evidence — and permit them to ignore court orders with impunity — merely by employing the expedient of claiming that the evidence is immaterial and unnecessary (CPLR 3101 [a]). — 251 — Plaintiffs were entitled to inspect the tapes to determine for themselves whether the area of the accident was depicted. They should not be compelled to accept defendant’s self-serving statement concerning the contents of the destroyed tapes, particularly in view of the conflicting evidence in this case. Though “not 100 percent sure,” defendant’s manager testified that the area of plaintiff Elissavet’s accident was within view of the surveillance cameras. Without the video recording, plaintiffs may be unable to establish that defendant had the requisite notice of the piece of mango on the floor that is alleged to have caused the fall (see Minaya v Duane Reade Intl., Inc., 66 AD3d 402, 403 [2009]). The dissent, in an attempt to find support for defendant’s position that the surveillance tape made on any particular day is effectively destroyed in the ordinary case by being reused 30 days later and, thus, the tapes were destroyed long before the court order was issued, has completely distorted the record. During his examination before trial on August 26, 2008, defendant’s general manager, Cesar Abreu, responded to a question concerning defendant’s surveillance system, particularly, under normal circumstances, how long a computer file is kept. Abreu answered, “Basically it’s a basic program that runs for 30 days it keeps it on file.” However, it is clear from the totality of Abreu’s testimony that the procedures for compiling and retaining videotapes on uneventful days differed from the procedures on those days when there were accidents on the premises involving patrons. The dissent seizes on Abreu’s general response and completely disregards his detailed and specific testimony concerning the compilation and storage of the videotapes of Elissavet’s accident to conclude that they had been routinely destroyed. In fact, Abreu testified as to the retention of the subject videotapes as follows: “Q: Did anyone ask you for a copy of the videotapes that day? “A: You just make sure you keep it inside a safe. “Q: There’s a safe? “A: Inside the office. “Q: Is the camera — the views that we’re talking about the video— “A: It’s kept for that day. — 252 — “Q: That’s put on a CD or any type of storage device? “A: Or a videotape, we keep the video for that day. “Q: Was that done for this incident? “A: Yes.” It is significant that Abreu was deposed more than six months after the court had issued the order directing production of the tapes. According to his testimony, defendant was in possession of the tapes at the time of his deposition. When asked where that video was, he responded succinctly, “It has to be back in the store.” Plaintiffs’ counsel then demanded a copy of the video. Had the tapes already been destroyed at that time, counsel for defendant could have so stated on the record. Instead, he told plaintiffs’ counsel to “serve a demand and I’ll have to make a search.” Nowhere in Abreu’s deposition does he state that the videotapes taken on the day of the accident were destroyed. It is only in the affidavit of Michael Feeley, “current” vice-president of Modell’s II, a subsidiary of defendant, submitted by defendant 16 months after the court ordered the production of the tapes, that the self-serving statement that no videotapes were created by defendant appears. In its tortuous reasoning that the tapes were destroyed before the court issued the order directing their production, the dissent not only distorts the unambiguous testimony of defendant’s own store manager, who has personal knowledge of the facts, but also conveniently disregards the applicable case law concerning the submission of defective, belated and contradictory affidavits in response to a dispositive motion. The dissent refers extensively to a second affidavit by Michael Feeley, dated August 31, 2009, submitted in opposition to plaintiffs’ motion dated July 8, 2009, to strike defendant’s answer for failure to preserve evidence. This affidavit, which was submitted 20 months after the court ordered defendant to produce the tapes and approximately 36 months after the accident, states, inter alia, “Each tape would be recycled and taped over on a constant thirty day basis. It appears that this is what happened to the videotapes from the store on the date of the plaintiff’s accident.” This affidavit completely contradicts the deposition testimony of defendant’s store manager, Cesar Abreu, who testified more than a year earlier that a videotape was made on the day of the accident and was kept in a safe in the office of the store. Abreu also testified at his deposition, — 253 — taken six months after the court order had issued, that the tapes made at that time were in the store. Despite the glaring inconsistencies between Feeley’s testimony and that of manager Abreu, the dissent continues to argue, by selective reading of Abreu’s testimony, that Feeley’s testimony is not inconsistent with that of Abreu, an indefensible position. The Feeley affidavit is nothing more than a last-minute attempt by defendant to tailor the facts and present a feigned factual issue to avoid the consequences of the admission by manager Abreu, six months after the court order was issued, that the subject tapes were retained on defendant’s premises, and is, thus, without probative value (Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 257 [1997]). Further, a self-serving affidavit by the vice-president of a subsidiary of defendant offered to contradict the deposition testimony — here, the testimony of defendant’s own general manager — or to retract a previous admission does not raise a bona fide issue of fact and will be disregarded (see Lupinsky v Windham Constr. Corp., 293 AD2d 317, 318 [2002]). It appears that Feeley was not the vice-president of defendant’s Modell’s II subsidiary at the time of plaintiffs accident, nor did he work at the premises where the accident occurred. On the other hand, Cesar Abreu was defendant’s general manager at the subject store, interviewed the injured plaintiff immediately after the accident, called an ambulance for her, investigated the accident, and prepared the accident report. As opposed to Feeley, Abreu is a witness with actual personal knowledge of the facts, and he testified as to how the videotapes on the date of the accident were prepared and retained by defendant. The affidavit by Michael Feeley is deficient. Throughout its writing, the dissent at times refers to Feeley as “defendant’s vice-president,” a misidentification conveying the false and misleading impression that Feeley was employed in a capacity giving him personal knowledge of the facts of this case. Once again, Michael Feeley is not the vice-president or even an employee of defendant corporation. In both of his affidavits, he avers that he is the current “Vice President of Modell’s II, Inc., a subsidiary of [defendant corporation].” Nowhere in his affidavits does he state whether there was any operational connection between Modell’s II and defendant corporation, two separate and distinct entities, a fact that the dissent does not want to acknowledge. In any event, the dissent misses the point. Fee — 254 — ley, who is not an employee of defendant corporation, makes the conclusory allegation that he is “fully familiar with the operations of this store, including the surveillance cameras located in certain parts of the store,” without any explanation of the source of his knowledge (see Peacock v Kalikow, 239 AD2d 188, 190 [1997]). He does not state the nature of his duties, if any, with respect to defendant, a corporation he apparently has no connection with, so as to shed light on the manner in which he allegedly obtained knowledge of the facts of this case. Thus, his affidavit is without probative value (id.). This Court is empowered to decide, sua sponte, that an affiant is without personal knowledge of the facts in a case by simply reviewing the substance of the affidavit (see e.g. Adam v Cutner & Rathkopf, 238 AD2d 234, 238 [1997]). We are not required to accept Feeley’s testimony as competent evidence merely because he “swore to the fact,” as the dissent urges. It is the burden of the proponent of an affidavit to demonstrate the basis of the affiant’s knowledge (see id. at 239-240), and here, defendant failed to meet that burden. It appears that the dissent is placing the burden of proof on the wrong party when it states that “[plaintiffs’ counsel offered no factual basis for his assertion that the vice-president had no personal knowledge of the facts.” It further appears that the dissent is advancing a legal concept that anyone remotely related to a party to an action can claim to have personal knowledge of the facts of the internal workings of that party by merely reciting, without more, his or her remote connection to that party. That is not the law. Thus, the dissent’s conclusion that Feeley has personal knowledge of the facts based solely on Feeley’s statement that he is the current vice-president of defendant’s subsidiary corporation is without factual or legal basis and must be rejected as untenable. The dissent is incorrect when it states that “at no time have plaintiffs ever argued that the vice-president’s position as an officer of the subsidiary was at all relevant, let alone that it provided a ground for disregarding his affidavit.” In the reply affirmation dated September 10, 2009, plaintiffs’ attorney stated that “the Court should not be misled by the improper self-serving and speculative affidavits from defendant’s two off-site executives with no personal knowledge of the facts.” Because the dissent’s arguments are premised on the self-serving statements by Michael Feeley, its entire position falls along with the affidavits, which lack merit and probative value. Under the circumstances, the motion court properly directed that an adverse inference charge be given against de — 255 — fendant at trial. It is not the function of this Court to micromanage discovery proceedings in the trial parts, particularly where, as here, the remedy for nondisclosure is entrusted to the discretion of the motion court (CPLR 3126), and the order issued was well within the province of the court’s discretion. Here, the dissent unnecessarily intrudes upon the discretion of the trial court to control its pretrial discovery calendar. The dissent’s reliance on Marcano v Calvary Hosp., Inc. (13 AD3d 109 [2004]) in support of its position is misplaced. There, the defendant similarly erased a videotape, alleging that the security camera did not film any of the plaintiff’s accident. However, the motion court sua sponte sanctioned the defendant by precluding it from offering evidence at trial regarding the manner in which the plaintiffs accident occurred. This Court reversed on the ground that it is for the jury to determine whether the defendant’s employee was credible when he testified that the videotape was erased because the camera did not cover the area of the plaintiffs accident and, if not, to determine the inference to be drawn. Here, the motion court directed that the trial court “shall issue a negative inference charge” against defendant. A reading of the adverse inference charge simply shows that it is permissive (Baez v City of New York, 278 AD2d 83, 84 [2000]), and conflicting inferences as to whether a video surveillance camera recorded the incident are appropriately deferred for resolution by a jury upon suitable instruction. As noted in Marcano, the charge provides that the jury shall determine whether there was a reasonable explanation for the destruction of evidence and, if not, the inference to be drawn from its destruction (see PJI 1:77.1; Tawedros v St. Vincent’s Hosp. of N.Y., 281 AD2d 184 [2001]). We note that in Marcano, in further contrast to the instant matter, it appears that no court order directing the defendant to produce the tape had been issued prior to its destruction. The sanction herein was “appropriately tailored to achieve a fair result” (Balaskonis v HRH Constr. Corp., 1 AD3d 120, 121 [2003] [internal quotation marks and citation omitted]). Defendant will not be able to use the absence of the videotape to its advantage (Minaya v Duane Reade Intl., Inc., 66 AD3d 402, 403 [2009], supra). Accordingly, the order of the Supreme Court, New York County (Carol R. Edmead, J.), entered on or about November 2, 2009, which granted plaintiffs’ motion to strike defendant’s — 256 — answer on the ground of spoliation of evidence to the extent of directing that an adverse inference charge be given to the jury, should be affirmed, without costs. Footnotes [*] The dissent mistakenly asserts that all reasonable inferences must be drawn in favor of defendant, which is the standard to be applied in favor of plaintiff upon a motion to dismiss the complaint (CPLR 3211 [a] [7]; Sanders v Winship, 57 NY2d 391, 394 [1982]). Rather, the sanction for failure to comply with a discovery order, as in the present case, is entrusted to the court’s discretion (see Couri v Siebert, 48 AD3d 370 [2008]).