The Evidence Doesn’t Wait: Preserving Surveillance in Premises Liability Cases

By Jeffrey T. Miller and Gabrielle Scibetta.

In premises liability litigation, surveillance footage can be pivotal to defending against allegations of negligence. Recordings may reveal whether a hazardous condition existed, how long it was present, and the circumstances surrounding an accident. When relevant footage is lost or overwritten, the defense may be deprived of valuable evidence to challenge a plaintiff’s allegations, establish a lack of notice, or limit the insured’s potential exposure.

In the landmark case of Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543 (2015), the New York Court of Appeals outlined the framework for imposing spoliation sanctions. A party seeking sanctions must demonstrate that the party controlling the evidence had an obligation to preserve it, that the evidence was destroyed with a culpable state of mind, and that the missing evidence was relevant to the claim or defense.

The Second Department recently applied these principles in Fernandez v. Port Authority of New York & New Jersey, 2026 NY Slip Op 05518 (2d Dep’t Sept. 30, 2026). The plaintiff alleged that she slipped on a wet substance in an airline terminal and requested preservation of surveillance footage. The airline’s system automatically overwrote recordings within approximately 25 to 45 days after the incident. Because a factual question remained as to whether the footage was destroyed before or after the airline’s preservation obligation arose, the court directed that an adverse-inference instruction be given at trial if the factfinder determines that spoliation occurred.

The decision highlights a significant concern for the defense: routine deletion does not necessarily shield a party from spoliation sanctions. An adverse-inference instruction may permit a jury to infer that missing evidence would have been unfavorable to the defendant. Although the court did not determine that spoliation had occurred or that the defendant was liable, the potential sanction creates an additional issue that may affect how the claim is litigated and evaluated.

For insurance carriers, claims professionals, and insureds, the decision underscores the importance of addressing evidence preservation early in the claims process. Identifying relevant surveillance footage, understanding retention policies, and coordinating with defense counsel can help preserve evidence critical to the defense and avoid potential spoliation sanctions.

Pillinger Miller Tarallo has extensive experience defending premises liability and general liability claims, working closely with carriers and clients to develop effective litigation strategies and protect their interests.

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Should you have any questions, please call our office at (914) 703-6300 or contact:

Marc H. Pillinger, Executive Partner
mpillinger@pmtlawfirm.com

Jeffrey T. Miller, Executive Partner
jmiller@pmtlawfirm.com

Jeffrey D. Schulman, Executive Partner
jschulman@pmtlawfirm.com

Richard J. Freire, Executive Partner
rfreire@pmtlawfirm.com