An injury case can turn on one question: what really happened? A video can be a decisive answer. But camera systems in stores, buildings, and terminals may record over old footage automatically, and the footage that shows your accident may be gone before anyone asks for it.
A Recent Example
In Fernandez v Port Authority of New York and New Jersey, decided by the Appellate Division, Second Department, on September 30, 2026, a woman said she slipped on a wet substance in an airline terminal on July 18, 2021. She sent the airline a letter dated July 30, 2021, asking it to preserve the video. The airline's legal department received the letter on August 19, 2021, 32 days after the fall. An airline employee later said the system automatically recorded over the footage sometime between 25 and 45 days after the incident, and that it had "most likely" been overwritten by August 19 (2026 NY Slip Op 05518, *1).
The court measured the airline's duty to preserve the video from the day its legal department received the letter. Because the employee's statement left open whether the video was erased before or after that day, the court held that "a triable issue of fact exists as to whether spoliation of evidence occurred, which issue should be determined by the trier of fact." If the jury finds spoliation, the court held, "[t]he appropriate sanction" would be an adverse inference charge against the airline (id. at *2): an instruction that allows the jury to draw an inference against the airline from the missing video.
What "Spoliation" Means
Spoliation is the loss or destruction of evidence. To get a sanction, the party asking for it 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 or defense such that the trier of fact could find that the evidence would support that claim or defense" (Fernandez, *2, quoting the Court of Appeals in Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547). Carelessness can be enough: "A culpable state of mind for [the] purposes of a spoliation sanction includes ordinary negligence" (Fernandez, *2, quoting an earlier decision).
Courts draw the possible sanctions from CPLR 3126, which lists orders ranging from deciding an issue against the party to striking pleadings, dismissing the case, or entering a default judgment. In Fernandez, the court chose an adverse inference charge because losing the video "did not deprive the plaintiff of the opportunity to prove her case" (Fernandez, *2).
What a Preservation Letter Does
A preservation letter puts the owner of the video on notice that it must keep it. It works best when it is:
- Sent fast. In Fernandez, the erasure window was 25 to 45 days. A few days can make the difference.
- Sent to the right place, with proof of the date it arrived. The court in Fernandez looked at when the legal department received the letter, not the date typed on it.
- Specific and broad. It should name the date, a time window around the accident, the location, and every camera that may have captured it, and it should ask for more than video: incident reports, cleaning and inspection records, and the names of employees on duty.
A letter is a request. If you need a court's help to protect video before a lawsuit starts, New York law allows "disclosure to aid in bringing an action, to preserve information," but "only by court order," and the court decides whether to grant it (CPLR 3102(c)).
Video Has to Show What Happened
A video helps only if it clearly shows the accident. In Komlan v Belisle, decided by the First Department on October 6, 2026, an e-bike rider's early motion to decide fault failed because "[t]he accident is not clearly depicted" in the surveillance video (2026 NY Slip Op 05729, *1, quoting an earlier decision). Getting the video is the first step; a lawyer still has to review what it actually shows.
The Same Rules Apply to You
Spoliation rules apply to every party, including the injured person. Keep the shoes and clothing you were wearing, your damaged bike or helmet, and the photos and videos on your phone. Do not delete social media posts about the accident. Our earlier post on why hiring a lawyer early helps preserve evidence has more on what to keep.
What to Do After an Accident
- Get medical care, and follow your doctor's advice.
- Look around for cameras on buildings, stores, buses, and doorbells, and write down where they are.
- Photograph the scene and write down the names and phone numbers of witnesses.
- Talk to a lawyer quickly, so a preservation letter can go out while the video still exists. If a public agency may be involved, a Notice of Claim generally must be served within 90 days (General Municipal Law ยง 50-e). Some agencies, such as the Port Authority, have their own rules. In some circumstances, your time to act may be even shorter.
If you were hurt and there may be video of what happened, contact The Eskesen Law Firm for a free consultation. Calls are answered live 24 hours a day, 7 days a week.
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