Opinion
300017/06.
Decided March 14, 2008.
Andre N. Poulis, Esq., NEWMAN FITCH ALTHEIM MYERS, P.C., New York, NY, Counsel for Defendants.
Jeannette M. Poyerd, Esq., Angiuli Katkin Gentile, LLP, Staten Island, NY, Counsel for Plaintiffs.
Defendants move for an order pursuant to the doctrine of spoliation, CPLR 3124 and 3126, precluding the plaintiff from presenting any evidence as to any allegation of lumbar injuries and all symptomology flowing therefrom, including but not limited to spoliation films at the time of trial of this matter. Defendants had also moved to compel the plaintiff to provide outstanding discovery. That branch of defendants' motion was withdrawn.
In the underlying action, plaintiff, Jose Juan Castillo seeks damages for personal injuries allegedly sustained as a result of an automobile collision which occurred on October 31, 2000. Plaintiff alleges injuries, inter alia, to his lumbar spine. An MRI of plaintiff's lumbar spine was taken on November 9, 2000 which revealed a herniated disc at L4-L5.
As part of the discovery in this action, defendants have attempted to obtain copies of plaintiff's MRI films to have them reviewed by a physician. To date, they have been unsuccessful in that plaintiff has indicated and continues to maintain that he is not in possession of the films. The MRI was taken at Diagnostic Imaging, and after requesting them from the facility, pursuant to an authorization given to defendants by plaintiff, defendants were advised that Diagnostic Imaging was not in possession of the films due to the fact that the plaintiff signed out the MRI films.
Plaintiff treated for his injuries with Dr. David C. Abrams, who prescribed the lumbar MRI to be performed. Thereafter, due to plaintiff's complaints of pain radiating into his extremities, Dr. Abrams referred plaintiff to Dr. Joseph Mormino, a neurologist. Plaintiff treated with Dr. Mormino at the Neuro Diagnostic and Treatment Center. In conjunction with the treatment, plaintiff signed out the original MRI films from Diagnostic Imaging and provided them to Dr. Mormino. Plaintiff contends that he has not seen the MRI films since he gave them to Dr. Mormino. Subsequently, as set forth in an affidavit from Dr. Mormino, "Neuro Diagnostic discontinued its business and vacated the . . . premises. I have since relocated my practice. . . . I have searched my records . . . and I have not located any films pertaining to Mr. Castillo."
Plaintiff contends that the MRI films are lost and plaintiff is unable to locate them, due to no fault on plaintiff's part. Plaintiff further contends that his lumbar injuries may be proven or refuted through the MRI report, plaintiff's medical records and a clinical examination of plaintiff. Plaintiff relies upon the Best Evidence Rule and the Court of Appeals case of Schozer v. William Penn Life Insurance Co. Of New York, 84 NY2d 639.
While plaintiff relies on the Best Evidence rule and the aforementioned case, the thrust of defendants' motion and corresponding arguments stem from the doctrine of spoliation, which also forms the basis of the within decision. Sanctions for spoliation of evidence range in severity. In Iannucci v. Rose, 8 AD3d 437, the Appellate Division Second Department held that the Supreme Court providently exercised its discretion in not dismissing defendant's answer, and further stated that,"The court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence ( see Allstate Ins. Co. v. Kearns, 309 AD2d 776). It may, under appropriate circumstances, impose a sanction "even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided [the party] . . . was on notice that the evidence might be needed for future litigation" ( DiDomenico v. C S Aeromatik Supplies, 252 AD2d 41, 53; see Favish v. Tepler, 294 AD2d 396, Baglio v. St. John's Queens Hosp., 303 AD2d 341). Recognizing that striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness ( see, Favish v. Tepler, supra). A less severe sanction is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her defense or case. ( see, Chiu Ping Chung v. Caravan Coach Co., 285 AD2d 621; Klein v. Ford Motor Co., 303 AD2d 376.)
Under the circumstances here, it cannot be presumed that the plaintiffs are the parties responsible for the disappearance of the MRI films or, more importantly, that the films were discarded by the plaintiffs in an effort to frustrate discovery (see O'Reilly v. Yavorskiy, 300 AD2d 456, 457; McLaughlin v Brouillet, 289 AD2d 461; Behrbom v. Healthco Intl., 285 AD2d 573). Moreover, the plaintiffs are also prejudiced. (Payano v. Milbrook Properties, Ltd. 39 AD3d 518, 519-520). The court does not find that defendants are deprived of the ability to defend herein. Further, defendants may, at trial, seek an adverse inference jury charge (see, PJI 1:77) regarding the missing MRI films, at the discretion of the trial judge.
Accordingly, defendants' motion is denied.
Movant shall serve a copy of this Order with Notice of Entry upon the defendant and the appropriate court clerk within ten (10) days of this Order.
The foregoing shall constitute the Decision and Order of the Court.