Slip and Fall Case Leads to Sanctions Faceplant

Atiles v. Golub Corp., No. 521828 (N.Y. App. July 28, 2016).

The appellate court affirmed the lower court’s denial of an adverse inference instruction where the plaintiff did not establish that the additional video evidence she sought was “relevant to [her] claim.”

The plaintiff, Glorimar Atiles, fell in a grocery store operated by the defendant, Golub Corporation. Atiles brought a negligence action for damages related to her resulting injuries. During discovery, Golub provided “video surveillance that included footage prior to, during and after” the accident.

Atiles requested video footage from “the full 24-hour period after the accident” and moved the lower court to compel production of at least “the two hours following” the fall or, in the alternative, “to issue an adverse inference charge.” After the lower court denied Atiles’s motion, she appealed to this court.

The appellate court noted that a trial court “possess[es] broad discretion to provide proportionate relief to a party deprived of lost or destroyed evidence.” However, to obtain sanctions for spoliation of evidence, a party 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.’” If a party can demonstrate intentional destruction of evidence, “the relevancy of the destroyed [evidence] is presumed.”

Here, Atiles “failed to establish a prima facie case for entitlement to sanctions.” Atiles offered no evidence about Golub’s video system or any “explanation for how the disputed video came to be lost or destroyed.” Instead, the appellate court noted that “the record contains no evidence related to the maintenance, or lack thereof, of any video related to the security cameras.” Without proof of willful destruction, Atiles “retained the burden of proving the relevancy” of the later portion of the video.

Atiles argued that this video was relevant “as there [was] no depiction or disclosure of who cleaned up the spill,” so she could not identify witnesses for deposition. The court rejected this argument, finding it “contradicted by the video evidence,” which showed “after Atiles fell, two employees stooped down and proceeded to wipe the floor.” Where the disclosed video showed that the “spill was already cleaned up” before the video ended, any “later video [that] depicted additional employees” at the scene would not be relevant since they would not have observed “the condition of the floor at the time” of the accident.

Because “no reasonable view of the evidence supports [Atiles’s] contention” as to the relevance of any additional video, the court affirmed the lower court’s denial of both her motion to compel and her motion for sanctions.

Atiles v. Golub Corp., No. 521828 (N.Y. App. July 28, 2016).


If you are the party that fails to preserve evidence, marshal as much evidence in your favor as possible. Provide information on how you use and maintain the evidence-producing system, and offer a reasonable explanation for what happened to any missing evidence. Fortunately for the defendants, Atiles failed to focus on the critical issues that might have led the court to conclude that sanctions were warranted. As the court remarked in a footnote, Atiles failed to raise the issue of other pre-incident video from other cameras in the store in the lower court, so the “defendants would have perceived no reason to create a factual record in regard to other video cameras, or the lack thereof, in the store,” and the court could not “properly consider that argument for the first time on appeal.”