The Second Department in Alvarez v. 100-10 67th Road Condominium (2026) determined that sanctions were warranted for defendants for not preserving surveillance footage of the plaintiff's accident, but that the total preclusion on liability was too severe under the circumstances.

The plaintiff alleged that she slipped and fell on water at the bottom of a staircase between the fifth and sixth floors of the apartment building where she resided. She claimed the defendants were negligent in failing to repair a leaking roof and/or skylight. The building had surveillance cameras in the stairwell that captured three weeks of footage before being automatically overwritten. The plaintiff served a notice less than two weeks after the accident, demanding recordings from 24 hours prior to the incident and that any video and related records be preserved and maintained. The defendants later produced only a one-minute-and-seven-second phone recording, taken by the building superintendent from the surveillance system. The recording did not show the fall itself or the period leading up to it. The plaintiff moved for spoliation sanctions after learning that the full footage no longer existed. 

The Queens County Supreme Court granted the plaintiff's motion pursuant to CPLR 3126 to impose sanctions against the defendants for spoliation of evidence to the extent of precluding the defendants from offering any testimony, evidence, or defense in opposition to a motion for summary judgment. The Supreme Court further granted the motion to preclude the defendants from offering any testimony, evidence, or defense as to their liability at trial.

The Appellate Division determined that the defendants were at least negligent in failing to preserve the surveillance footage and that the destroyed evidence was relevant to the plaintiff's claim. However, they determined that the lower court improvidently exercised its discretion in precluding the defendants from presenting any testimony, evidence, or defense as to their liability at trial. As such, the Court instead modified the Queens County Supreme Court order by deleting the liability preclusion sanction and substituting an adverse inference charge at trial regarding the missing surveillance footage. 

Practical takeaway: The decision emphasizes that a court must tailor sanctions to the culpability of the party who lost the evidence and the resulting prejudice, under the common law doctrine of spoliation and CPLR 3126. Even here, where missing surveillance footage was relevant and sanctions were justified, striking defenses or precluding all liability evidence was excessive, as a lesser sanction, such as an adverse inference instruction, would have more adequately addressed the harm. If negligence is shown, rather than more egregious conduct, an adverse inference may be favored over liability preclusion.