New York State Court of Claims

New York State Court of Claims

GOMEZ v. THE STATE OF NEW YORK, #2009-036-518, Claim No. 114305, Motion Nos. M-75677, CM-75910


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
By: Christopher J. Ruckh, Esq. and Bret L. Myerson, Esq.
Defendant’s attorney:
By: Cheryl Rameau, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 31, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In this slip and fall case, at the close of discovery, defendant moves for summary judgment and claimant cross-moves to strike defendant’s answer on the basis of spoliation of evidence.[1] Claimant alleges she was injured when on December 1, 2005 she slipped and fell at a spot where there was a spilled brown liquid resembling coffee on the floor at Downstate Medical Center. She testified at her deposition that between 10:30 and 11 a.m. of December 1, 2005 her daughter dropped her off at the hospital while her daughter went to park her car. Claimant entered the hospital, signed in with the security desk and then slipped and fell approximately 12 to 15 feet from the hospital entrance. A photo of the area where claimant fell shows it was in the vicinity of beverage vending machines (Ex. E to Affirmation in Support, dated October 8, 2008 [“Moving Affirmation”]). Claimant testified, in part, as follows:
Q: How long had you been in the hospital before your accident occurred?
A: When I fell?
Q: Yes.
A: It was when I was – it was getting inside the hospital that I fell.
Q: Where in the hospital did you fall?
A: In the entrance.
Q: Did you fall at the entrance that you first entered from the street?
A: After I get inside through that door, that’s when I fell.

(Ex. D to Moving Affirmation at pp 14-15).

Q: The substance that you fell on, do you know for a fact it was coffee?
A: Yes.
Q: How much of this brown liquid was on the floor in the area where you fell?
A: I can’t tell you the quantity.
Q: Was it a small amount, was it a medium amount, a large amount?
A: The only thing I know is that I slipped.

(Id. at p 29).

Claimant further testified to the following:

Q: Now, after you fell, were you able to observe whether or not there were any footsteps leading into or away from the coffee that caused you to fall?
A: No, no.
Q: Do you understand my question?
A: Yes.
Q: Did you see any indications that anyone had walked through the coffee prior to your accident?
A: No.

(Id. at p 38).

Claimant also testified as follows:

Q: Was any portion of the coffee dried or was it all liquid?
A: I saw the coffee.
Q: But I’m trying to find out, was it all liquid or was any part of it dried onto the floor?
A: Should be liquid, because I slipped because of the water.
Q: As you sit here today, do you know if the coffee was cold or was it warm or was it hot?
A: I don’t know, my dear.

(Id. at p 39).

Claimant’s daughter did not witness the accident, but she testified that she did see a coffee-like brown liquid on the floor where her mother fell. She said she thought it “probably” was a “small amount,” but she was not “exactly sure.” Ex. F to the Moving Affirmation at pp 21-24.

Ms. Glorinne Alexis, the housekeeper assigned to the area where the accident occurred was also deposed. She testified that she worked from 7:00 a.m. to 3:30 p.m. with a lunch break from 12:00 to 12:45 p.m. (Ex. I to Moving Affirmation at p 11). Ms. Alexis testified that cleaning the area where the accident occurred was part of her responsibility. (Id. at pp 7-8). Ms. Alexis also said that she patrolled the area of the accident on a continual basis throughout her shift, checking for garbage, and cleaning when necessary. (Id. at pp 22-24). She did not clean any spills on the morning of December 1, 2005. (Id. at pp 14-15). In fact, she was unaware of the claimant’s accident, until she was noticed for her deposition. (Id. at p 15). In addition, in support of its motion defendant has offered the depositions of the director of the environmental service department and the security public safety officer of Downstate and a hospital police officer on the scene. See Exs. G, J and M to the Moving Affirmation.

Defendant argues that claimant has failed to produce any credible evidence that the hospital created the condition which caused the fall, such as evidence that a hospital employee spilled the coffee. Defendant further argues that there is no credible evidence that the hospital had notice of the spilled coffee. See Moving Affirmation at ¶¶ 15-16. The essence of defendant’s argument is that claimant is unable to show how the coffee that she said she slipped on came to be on the floor in the hospital, how long it was there or that defendant had notice or should have had notice of the dangerous condition. The court has reviewed the depositions provided by defendant in support of its motion, including the deposition of claimant and the housekeeper responsible for cleaning and monitoring the area. The court concludes that the evidence is insufficient to establish a cause of action of negligence on the part of defendant.

Claimant has raised a problematic issue, however: spoliation of evidence. Claimant points to evidence that at the time of the accident on December 1, 2005 the area where claimant slipped and fell was continuously monitored by video cameras. The video for that date was not preserved; rather, the recordings for the December 2005 period covering the time of the accident were recycled and the data on them was erased in the process. Evidence pertaining to the area where the accident occurred was not preserved even though it may have resolved the key issues of how the coffee came to be spilled and whether it remained on the floor for a sufficient period of time and in such an obvious condition that it could be said the hospital incurred a duty to clean it up before claimant entered the scene.

In response to claimant’s spoliation cross-motion, defendant proffers an affidavit from Joseph R. Rodriguez, Jr., Deputy Chief, New York State University Police, employed at Downstate, who is responsible for security at the hospital, including camera surveillance of the facility. See Ex. A to Reply Affirmation, dated January 9, 2009. Deputy Chief Rodriguez explains that the camera at issue records 24 hours a day on a hard drive. When the hard drive reaches its capacity, the previously recorded data is automatically deleted as new data is recorded onto the hard drive. The surveillance camera covering the area at issue was capable of storing data for approximately two months before it was deleted as new data was recorded over the old, so that by early February 2006 any data recorded at the time of the accident was deleted. Claimant served a demand for the recordings of the cameras on March 31, 2008, after claimant’s counsel learned of the existence of the surveillance camera during the depositions of the hospital’s security and police witnesses referred to above. See Opposition Affirmation at ¶ 24. By this time, of course, the recording of the area for the period when the accident occurred had long since been deleted. Claimant points out, however, that at the time of the accident the hospital police officer who diligently prepared an accident report, also took pictures of the site, and the “only possible need for such photographs would be to defend against litigation.” Id. at ¶ 25.[2] Claimant notes that despite the diligent efforts of the officer to fill out an accident report and take photographs, the officer claims he never thought to review the surveillance footage of the hallway and allegedly not one employee of defendant thought to preserve the footage. Claimant thus argues she “finds this very hard to believe considering respondent’s [sic] full awareness of the incident and full awareness of the extent of claimant’s injuries.” Id. at ¶ 26.

The court is required to determine whether under these circumstances defendant’s failure to preserve the surveillance data from the hospital video camera for the period of December 2005 constitutes spoliation of evidence. An intentional destruction of evidence can result in the court’s striking the spoliator’s pleading (New York Central Mutual Fire Ins. Co. v Turnerson’s Elec., 280 AD2d 652, 652-53 [2d Dept 2001]). The court may strike a pleading even if the evidence is destroyed before the spoliator became a party to the litigation provided it was on notice that the evidence might be needed for future litigation (Id.; see also Cammarata v Drexel, 5 Misc 3d 1014(A) [Sup Ct, Queens County 2004] [even where destruction of evidence was not willful, as a matter of “elementary fairness” a pleading may be stricken]).

Defendant relies on Higgins v Armored Motor Service of America, Inc. (13 AD3d 1087 [4th Dept 2004]), where the Appellate Division affirmed the trial court’s refusal to strike the answer based upon defendant’s failure to provide a videotape of the incident in issue which was recorded on defendant’s security system because the videotape was recycled by defendant before litigation as a normal business practice. The trial court in Higgins, however, permitted plaintiffs to introduce evidence of a statement by defendant’s employee acknowledging the existence of the videotape and to charge the jury in accordance with PJI 1:77.1 (2004), which, in effect, allowed, but did not require, the jury to draw an inference that if the videotape had been produced, it would have contradicted the evidence offered by defendant.[3]

In response to defendant’s citation of the Higgins case, claimant requests that it be afforded similar treatment, that is, the court should draw an inference adverse to defendant. The suggestion that this court which, of course, sits without a jury should draw an inference adverse to defendant is not particularly persuasive in the face of the record that already exists here. There is considerable evidence that the hospital did not breach a duty of care in this case. According to claimant’s own testimony the wet substance she slipped on was coffee (a hot liquid). One may reasonably infer that since neither claimant nor anyone else testified the wet spot was a large spill, e.g. a puddle, the area could not have been wet for all that long a time. A relatively small amount of hot liquid would have dried had it been there for quite a while. No one’s testimony gives the court reason to infer that the wet floor existed for such length of time as to have constituted constructive notice of a danger which the hospital should have discovered and remedied. (See e.g. Lowrey v Cumberland Farms, Inc., 162 AD2d 777, 778 [3d Dept 1990] [“In order to impose liability upon defendant, there must be evidence tending to show the existence of a dangerous or defective condition and that defendant either created the condition or had actual or constructive knowledge of it.”]). “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Indeed, the testimony of the officer on the scene immediately after the accident concerning the wet area and the accident report he filled out at the time suggests the contrary. See Ex. J to Moving Affirmation at p 20; Ex. K.

There is no doubt that in the best of all possible worlds, the officer who prepared the accident report and took photographs of the scene should have thought of the surveillance camera and of the possibility that the hard drive might contain evidence as to how long the condition existed, to wit, the legal issue involved. That did not happen here, perhaps because the officer did not appreciate the significance of the notice question and what the video might have revealed in that regard as opposed to the photographs he took. On these facts, however, the court simply does not see that the failure to preserve the hard drive justifies an adverse inference which would become the sole basis on which to find liability here.

Accordingly, the court grants defendant’s motion for summary judgment dismissing the claim and denies claimant’s cross-motion to strike defendant’s answer.

March 31, 2009
New York, New York

Judge of the Court of Claims

[1].In connection with this motion and cross-motion, the court considered and read: Motion for Summary Judgment, dated October 8, 2008, together with affirmation and exhibits; Notice of Cross-Motion, dated November 21, 2008, together with affirmation and exhibits; Reply Affirmation, dated January 9, 2009, together with exhibit; and Reply to Affirmation in Opposition to Cross Motion, dated January 22, 2009.
[2].Claimant adds that the photographs “were taken 25 minutes after the incident allowing the time for the condition to be cleaned.” Id.
[3].In the Higgins case the jury apparently chose not to draw an adverse inference when it rendered a verdict in favor of defendant. The verdict then was set aside by the trial judge, however, because the court found it was against the weight of plaintiff’s evidence which had been introduced, and this ruling was affirmed by the Appellate Division.