Negligent Loss of Surveillance Video: Adverse Inference (Not Defense-Nullifying Preclusion) as the Proportionate Spoliation Sanction

I. Introduction

Battle v Fulton Park Site 4 Houses, Inc. (2026 NY Slip Op 00114 [App Div, 2d Dept Jan. 14, 2026]) arises from a personal-injury incident at a building owned or operated by the defendants. The plaintiff, Anthony Battle, alleged that while exiting through a door he pushed on a glass window panel to open it, the glass broke, and he suffered a laceration.

The case quickly turned from premises liability to evidence-preservation: a security worker (Brianna Williams) viewed surveillance footage and wrote an incident report stating the plaintiff “punched” and broke the glass. The surveillance footage itself was later automatically erased. The litigation’s key issue became what sanction should be imposed for the loss of that video evidence—and, specifically, whether the defendants should be precluded from offering testimony or other evidence about what the video allegedly showed, or whether a lesser remedy (an adverse inference charge) would suffice.

II. Summary of the Opinion

The Second Department held that spoliation sanctions were warranted because the defendants had an obligation to preserve the surveillance footage, had control over it, negligently failed to preserve it, and the footage was relevant. However, the Court modified the Supreme Court’s order: it ruled that preclusion of the defendants’ evidence regarding the video was too severe because it “disproportionately eliminated their defense.” The appropriate sanction, given negligent (not intentional) destruction and the degree of prejudice, was an adverse inference charge at trial regarding the missing video.

A dissent would have affirmed preclusion, emphasizing that the defendants made the erased video central to their defense (fault/vandalism), that cross-examination would be of little value due to the witness’s lack of recollection, and that allowing testimony about a destroyed video risks rewarding negligent spoliation.

III. Analysis

A. Precedents Cited

Dagro Assoc. II, LLC v Chevron U.S.A., Inc., 206 AD3d 793
Cited for the baseline spoliation principle: under the common-law doctrine, sanctions may be imposed when a party negligently loses or intentionally destroys key evidence, and the analysis is tethered to CPLR 3126. It frames spoliation as a remedial tool to address litigation unfairness caused by loss of evidence.
CPLR 3126
Although not a “case,” it is central: it supplies the procedural authority for sanctions for disclosure-related misconduct, into which New York courts often situate spoliation remedies. The Opinion reinforces that spoliation sanctions sit within a discretionary sanctions framework.
Eksarko v Associated Supermarket, 155 AD3d 826
Used for two key propositions: (1) the elements a movant must show when evidence is negligently destroyed (including relevance), and (2) as a comparator for the proper sanction—supporting the remedy of an adverse inference charge where preclusion is too harsh.
Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543
Cited in the majority for the relevance requirement in negligent-destruction cases (via Eksarko) and in the dissent for the broader sanctions menu and the principle that sanctions should “restore balance to the litigation,” including the option of precluding proof favorable to the spoliator. The dissent also invokes the Pegasus distinction that relevance is presumed when evidence is intentionally destroyed, but must be shown when destruction is negligent.
M.M. v Macerich Prop. Mgt. Co., LLC, 219 AD3d 471
Supports the “notice of possible litigation” standard for when the duty to preserve arises. The Court analogizes to situations where the seriousness of the incident and immediate internal investigation put a party on notice, triggering a preservation duty.
SM v Plainedge Union Free Sch. Dist., 162 AD3d 814
Reinforces when a preservation obligation attaches—particularly where circumstances indicate that litigation is reasonably foreseeable. Both the majority and dissent rely on it to reject the defendants’ claim that they lacked a duty to preserve because the event seemed like vandalism.
Gaoming You v Rahmouni, 147 AD3d 729
Cited on the “control” element (and for the broad discretion trial courts possess in selecting sanctions). The majority distinguishes control issues by noting the footage was on the defendants’ computer system until erased; Gaoming You is also invoked as a general discretion benchmark.
Mendez v La Guacatala, Inc., 95 AD3d 1084
Along with Eksarko and Peters, used to support that sanctions are warranted and that an adverse inference charge can be an appropriate remedy for negligent loss of relevant surveillance footage.
Peters v Hernandez, 142 AD3d 980
Cited as another example where spoliation warranted sanctions and where adverse inference was treated as an appropriate proportional response.
Watson v 518 Pa. Hous. Dev. Fund Corp., 160 AD3d 907
Provides the multi-factor framework for choosing sanction severity: knowledge and intent, explanation for the loss, and degree of prejudice. The majority uses this proportionality framework to conclude preclusion was an improvident exercise of discretion here.
Samaroo v Bogopa Serv. Corp., 106 AD3d 713
Cited with Watson for the sanction-selection factors and proportionality concept.
Gregorian v New York Life Ins. Co., 211 AD3d 706
Appears in the dissent to validate preclusion as a recognized option to “restore balance,” particularly precluding proof “favorable to the spoliator.”
Ortega v City of New York, 9 NY3d 69
Cited (through Gregorian) by the dissent for the same “restore balance” premise supporting preclusion where appropriate.
Rokach v Taback, 148 AD3d 1195
Central to the dissent’s critique: it characterizes Rokach as materially similar (negligent erasure of surveillance video) and as applying preclusion (not merely adverse inference) where defendants sought to rely on the video’s alleged contents. The dissent portrays the majority’s approach as inconsistent with Rokach and as enabling a spoliator to present favorable secondary evidence about a missing video.
New York City Hous. Auth. v Pro Quest Sec., 108 AD3d 471
Cited by the dissent in support of preclusion as an established sanction for erased surveillance evidence in certain contexts.
Gaoming You v Rahmouni (again) & Pegasus Aviation I, Inc. v Varig Logistica S.A. (again)
In the dissent, these authorities underscore the breadth of trial-court discretion and the legitimacy of preclusion to neutralize the unfair advantage gained by spoliation.

B. Legal Reasoning

1. The “duty to preserve” attached before the video was erased

The Court emphasized litigation foreseeability. The security worker investigated the same day and documented the incident. More importantly, the site manager received a call reporting “severe injury” and hospitalization; she then learned a video existed and that an incident report had been made. In the Court’s view, these facts put the defendants “on notice of possible litigation” such that they had an obligation to preserve evidence “that might be needed for future litigation” (citing M.M. v Macerich Prop. Mgt. Co., LLC and SM v Plainedge Union Free Sch. Dist.).

2. Control, negligent destruction, and relevance were established

The video was on the defendants’ system (control), was “automatically erased” (negligent failure to preserve), and was relevant because it potentially showed how the glass broke—an issue bearing directly on liability and comparative fault. Consistent with Eksarko v Associated Supermarket (quoting Pegasus Aviation I, Inc. v Varig Logistica S.A.), the Court treated relevance as a required showing because destruction was negligent.

3. The dispositive question: proportional sanction

Having found spoliation, the Court turned to sanction selection. Invoking Watson v 518 Pa. Hous. Dev. Fund Corp. and Samaroo v Bogopa Serv. Corp., it reiterated that sanction severity depends on intent/knowledge, explanation, and prejudice. The majority concluded the Supreme Court’s preclusion order went too far because it “disproportionately eliminated their defense.” The Court opted for a calibrated sanction: an adverse inference charge regarding the missing video.

4. The dissent’s competing proportionality framework

The dissent accepts negligent destruction but argues that the sanction must neutralize the unfair tactical advantage created when a party can: (i) erase the best evidence (the video), yet (ii) still tell the jury what the video “showed” through a witness who lacks present recollection, leaving the opposing party unable to test accuracy. It treats preclusion as precisely the “restore balance” tool recognized in Pegasus Aviation I, Inc. v Varig Logistica S.A., and it relies on Rokach v Taback and New York City Hous. Auth. v Pro Quest Sec. as support for barring defendants from offering evidence of the erased video’s alleged contents.

C. Impact

Practical guidance for surveillance-video cases: The majority opinion reinforces that automatic overwriting will not excuse a failure to preserve once litigation is reasonably foreseeable, especially after reports of “severe injury” and immediate investigation.
Stronger proportionality emphasis where preclusion would gut a defense: The decision signals heightened scrutiny of preclusion when it would effectively decide the case by removing a central defense, favoring an adverse inference in negligent-loss scenarios.
Doctrinal tension highlighted (and likely litigated): The dissent’s reliance on Rokach v Taback frames a live debate in Second Department spoliation practice: when defendants seek to rely on a destroyed video’s alleged contents, should courts preclude that evidence to avoid “rewarding” negligent spoliation, or permit it subject to an adverse inference? Future motion practice will likely turn on how courts reconcile Battle’s proportionality rationale with Rokach-style preclusion outcomes.
Operational consequences for property owners and vendors: The case underscores that “procedure” or vendor practice (e.g., security companies saving clips) is not self-executing; once on notice, defendants should implement an affirmative litigation hold for video to avoid sanctions.

IV. Complex Concepts Simplified

Spoliation of evidence: The loss, destruction, or significant alteration of evidence that should have been preserved for litigation. Courts impose remedies to address the unfairness created by the missing evidence.
Duty/obligation to preserve: The obligation begins when a party is on notice of “possible litigation”—not necessarily after a lawsuit is filed. Serious injury reports and immediate investigation can trigger this duty.
Control of evidence: Evidence is within a party’s “control” when it is in their possession or they have the practical ability to preserve it (for example, stored on their system or maintained by their agent/vendor in a way they can direct to preserve).
Relevance (in negligent-destruction cases): When evidence is lost negligently, the party seeking sanctions must show the missing evidence was relevant to a claim or defense—i.e., it had potential to matter.
Preclusion: A sanction that bars the spoliating party from introducing certain evidence (or making certain arguments). It can be case-shaping because it may remove an entire theory of defense or liability.
Adverse inference charge: A jury instruction allowing (but not requiring) jurors to infer that the missing evidence would have been unfavorable to the party responsible for losing it. It is a lesser sanction than preclusion because it still permits the spoliator to present its case, but with a credibility/equity penalty.

V. Conclusion

Battle v Fulton Park Site 4 Houses, Inc. reaffirms that once defendants are on notice of potential litigation—especially after reports of severe injury— they must preserve surveillance footage, and failure to do so (even by automatic erasure) can warrant spoliation sanctions. The Second Department’s majority makes a clear proportionality move: where destruction is negligent and preclusion would effectively eliminate a defense, the preferred remedy is an adverse inference charge rather than categorical preclusion.

The dissent, grounded in Rokach v Taback and the “restore balance” principle of Pegasus Aviation I, Inc. v Varig Logistica S.A., underscores a continuing fault line in New York spoliation jurisprudence: whether it is fair to let a spoliator present testimony about what a destroyed video supposedly showed. That tension ensures Battle will be cited not only for its duty-to-preserve analysis, but also as a pivotal reference point in calibrating sanctions where surveillance video is missing.