In Mandel v. 131 Acres Road, LLC, Orange County Index No: EF005849/16 we moved to renew and reargue a prior decision that granted spoliation sanctions against all three defendants in a case where the plaintiff fell on snow and ice in the parking lot of a deli. In this case we represented the snow removal contractor. Plaintiff initially moved to impose spoliation sanctions against the co-defendant deli for the loss of video surveillance and requested no relief against our client.
The Court granted plaintiff’s motion and decided that the jury would be told that there was surveillance footage of the scene at and around the time of the accident that was no longer available through not fault of the plaintiff and that the footage would have shown that there was a snow and ice condition at or near where the plaintiff fell and that he slipped on the same.
In our motion to reargue we argued the adverse inference charge as ordered by the Court severely prejudiced the defense of our client who did not spoliate any evidence and had no control over the video surveillance footage that was discarded. We also argued that the deposition testimony of the witnesses directly contradicted the Court’s ruling.
In a 20-page decision, the Judge overturned his prior ruling. The new Court order directed the jury to be instructed that there was video surveillance footage at the scene at and around the time of the accident that is no longer available through the fault of the co-defendant deli, but not through the fault of any other party. The Court also reversed the portion of the prior decision where it held that the footage would have shown that there was a snow and ice condition at or near where the plaintiff fell and that he slipped on the same. A favorable settlement on behalf of our client took place soon thereafter.