This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
Where there is a question of fact as to the time a preservation letter is received and the time when the video is destroyed, the jury is to determine whether “spoliation of evidence” occurred. Here, in a slip-and-fall case against an airline, the Second Department held that “[t]he appropriate sanction” for any spoliation “would be an adverse inference charge” against the airline.
The case
- Court
- Appellate Division, Second Department
- Decided
- September 30, 2026
- Case
- Fernandez v Port Auth. of N.Y. & N.J.
- Citation
- 2026 NY Slip Op 05518
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff said that on July 18, 2021, she slipped on a wet substance in an airline terminal operated by Jet Blue, which keeps a video surveillance system there. She sent Jet Blue a letter dated July 30, 2021, asking it to preserve video “that depicts the location of the accident and/or [the plaintiff]” on that date. Jet Blue’s legal department received the letter on August 19, 2021, 32 days after the fall. She sued in November 2021. A Jet Blue employee’s affidavit, exchanged in discovery, said the system automatically overwrote the footage sometime between 25 and 45 days after the incident, and that it had “most likely” been overwritten by August 19. The Supreme Court, Queens County, denied her motion for spoliation sanctions under CPLR 3126, and she appealed.
The holding
The Second Department reversed. The plaintiff showed that Jet Blue was on notice of its obligation to preserve the video as of August 19, 2021, and the employee’s affidavit raised a question whether the video was destroyed before or after that date. 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” (2026 NY Slip Op 05518, *1). It also held that “[t]he appropriate sanction for any such spoliation of evidence would be an adverse inference charge against Jet Blue, as the destruction of any video surveillance footage of the incident did not deprive the plaintiff of the opportunity to prove her case” (id.).
What changed
Nothing new: this applies settled law. The court followed the Court of Appeals’ spoliation test in Pegasus Aviation I, Inc. v Varig Logistica S.A. (26 NY3d 543) and repeated that “[a] culpable state of mind for [the] purposes of a spoliation sanction includes ordinary negligence” (quoting its earlier decision in Gordon v Field).
What it means
- Camera systems may record over old footage automatically. In this case, the record showed a window of 25 to 45 days.
- The court measured the airline’s duty to preserve from the day its legal department received the letter, not the date written on the letter.
- Losing evidence through ordinary carelessness can be enough for a sanction.
- Because losing the video did not leave the plaintiff unable to prove her case, the court chose an adverse inference charge: an instruction that lets the jury infer the missing video would not have supported the airline. If the jury finds the video was lost before the duty arose, there is no charge.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
Many cases involving dangerous conditions rely on the concept of “notice,” meaning, was the defendant actually aware of the condition, or did the condition exist for long enough that the defendant should have known about the condition. Sometimes the best way to show this may be through surveillance video in the defendant’s possession, which may be automatically overwritten. We believe preservation letters should go out promptly. Sometimes only a few days can make a difference.
Topics
Court: Second Department. Year: 2026. Statutes: CPLR 3126. Result: reversed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided September 30, 2026. Posted October 5, 2026.
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