Save Text Messages – Proving in Court How Long an Apartment Has Needed Repairs
May 24, 2026
This post is a companion article to my podcast, which, at the time of publication of the episode was called Tenant Law Podcast, but which is now called Learn to Live Better, a Housing Law Podcast. Listen on Apple, Spotify, Youtube, or wherever you get your podcasts.
Today’s case is A3 Investments Sa v. Linnett, 2023 WL 6622740 [Supreme Court, New York County 2023], which is covered in Episode 30, listen on Spotify, Apple, YouTube or wherever you get your podcasts.
Proving Violations of the Warranty of Habitability – In General
We have talked a lot on the podcast about how to prove that conditions that violate the warranty of habitability exist in an apartment. This can be important whether a tenant is trying to get the landlord to do repairs or whether the tenant is trying to defend herself from owing rent. In the rent context, proving how long a condition existed before it got fixed is very important. If the tenant called about a leak on a Monday and it was fixed on the very next Tuesday, then that is less likely to give rise to a rent abatement than if the leak existed for six months, and the tenant alerted the landlord six months ago, and the landlord repeatedly did nothing.
The very best evidence that there is a condition in an apartment that violates the warranty of habitability is that a New York City Department of Housing Preservation and Development inspector came out to the apartment and issued a violation. Evidence of how long a condition has existed might also be established by making a formal complaint on the building’s management portal. Not every building is managed with an online portal, however. Pictures and videos with time stamps really help.
Also in these cases, landlords may admit a condition exists but may say that there was a delay in getting it fixed due to the tenant not providing access.
Or the condition may get partially fixed or seem all the way fixed and then need to be fixed again, which can also turn these situations into long complicated stories, where facts (about who knew what and when, and who did what when) matter and need to be proven.
One category of proof that is relevant to how long a condition has existed, whether the tenant allowed access to fix the condition, and the exact status of the repair – are emails, text messages, and other online communications.
In the case we are looking at today, the tenants lost a lot of relevant text messages about conditions in their apartment, because they changed phones. Not only did they not have that evidence to help them, but the court punished them for not producing those texts during discovery in the lawsuit. That is what we are looking at today.
Save All Text Messages Regarding Apartment Repairs
In today’s case, A3 Investments Sa v. Linnett, 2023 WL 6622740 [Supreme Court, New York County 2023], it is the tenant suing the landlord to get out of a one-year lease, after only four months, because of alleged conditions in the apartment.
The case was in the discovery phase, where the parties demand information from each other and exchange paper.
Here is a quote from the case: “[landlord] asserts that during the course of discovery, repeated demands were made to [tenant] for text messages on…tenant’s mobile phones to discern facts about the conditions in the [apartment], as alleged by [tenant], including [tenant’]s damages and the decision to vacate the [apartment] early…[which was] evidence going to the very heart of this case.”
The tenant was claiming that the apartment was impossible to live in and that the landlord ignored tenant’s repeated pleas to deal with the bad conditions.
As part of the discovery in the case, the landlord asked the tenant for copies of all relevant text messages. The tenant refused to hand the text messages over because the tenant had changed phones and, in so doing, had lost all the relevant text messages. The landlord, therefore, asked the court for what is known as spoliation of evidence sanctions against the tenant for failing to cooperate with discovery and hand over the text messages.
What is our legal standard here, how do courts make these decisions? Here is another quote from today’s case: “On a motion for spoliation sanctions, the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a ‘culpable state of mind,’ …; and (3) the destroyed evidence was relevant to the moving party’s claim or defense. In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness.” This is the accepted standard for evidence spoliation sanctions.
In today’s case, the tenant says they did not have the requested messages because they changed phones. The landlord says – well you knew you were going to sue the landlord and that there were a lot of text messages relevant to the case on your phone, so you should have backed up those messages before tossing the phone.
One more sentence from the case, this is the legal standard for when the duty to hold on to evidence attaches: “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to preserve evidence.” That applies to texts and emails. So, once a litigant or potential litigant knows there is a controversy, the litigant or potential litigant needs to hold on to texts and emails about that controversy.
In today’s case, the court considered several circumstances, such as the fact that the landlord already had many of the text messages being sought and the fact that disposing of the phone was more of a mistake and it did not seem intentional. Although the tenant was still held responsible. The court decided it would give the jury an “adverse inference” charge, which means – the judge will instruct the jury that the lack of the texts means that the texts would have been bad for the tenant and good for the landlord. The sanction to the tenant could have been much worse.
This gives rise to some interesting takeaways, not only about how to protect oneself in litigation, but also how one can use this rule against your adversary.
Takeaway
One takeaway from today’s case is, when it comes to one’s apartment, save everything. Save everything. Cyber storage is cheap these days. Most people have one million saved pictures somewhere. Save and clearly label all the texts and emails that concern an apartment. One never knows when this stuff will be important.
The other takeaway is that this rule works both ways. Landlord should be preserving information relevant to any controversies with tenants. I am making up this scenario. Let us say the big issue in a case is – did the landlord REALLY send a plumber on the 15th at 10:00 am? A tenant took the day off from work for this appointment. No plumber came. The landlord says she sent the plumber and the tenant did not answer the door. Who is telling the truth? The landlord has some paper from the plumber, stating that the plumber was there but the tenant did not answer the door. Well, that is easy enough to manufacture. What if the tenant said to the landlord, “this building only has one front entrance and there is a security camera there. I want to see the footage from the 15th; I want to see if the plumber really walked through the door”. The landlord responds, “sorry, that was six weeks ago and we only keep 30 days of footage before the data gets written over on that camera”. The tenant could potentially say here, “hey Ms. Landlord, you knew this was a big point of controversy, that tape would prove you really sent the plumber, and you destroyed it, the judge in this case should assume an adverse inference against landlord when considering which of us is telling the truth”.
The bottom line is, everyone should hold on to their electronic data regarding repairs in New York City apartments.
Respectfully submitted,
