Court rules that adverse inference instruction was proper if the jury did not credit the testimony of defendant’s employee regarding spoliation of surveillance video.

The Appellate Division, Second Department affirmed the trial court’s ruling permitting the jury to consider an adverse inference charge if they did not credit the testimony of the defendant’s witness that there was no surveillance footage of the accident. The plaintiff slipped and fell in the ATM vestibule at the defendant’s bank. No surveillance was produced, which prompted the plaintiff to move to strike the defendant’s answer. In response, the defendant submitted the affidavit of an employee who stated that she searched for all video of the incident and no such video existed. The court held that the adverse inference charge could be considered if the jury did not credit this employee’s testimony.

^{Case Law Alerts, 4th Quarter, October 2017 Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}