Tomasello v. 64 Franklin, Inc – Case Brief Summary (New York)

In Tomasello v. 64 Franklin, Inc. (45 AD3d 1287, 1288, 845 N.Y.S.2d 643 [4th Dept. 2007]), in considering a plaintiff's motion for spoliation sanctions against a defendant who lost a surveillance videotape containing footage of the plaintiff's slip and fall at the defendant's premises, the Fourth Department noted that the loss of the tape did not prevent the plaintiff from demonstrating a prima facie case of negligence against the defendant, and, significantly, that "plaintiff will have the opportunity, if so advised, to depose the individuals who viewed the surveillance videotape in question."

Even so, the court stopped short of stating an opinion as to whether testimony about the contents of the videotape would be admissible at trial.