Opinion
October 24, 1994
Appeal from the Supreme Court, Nassau County (Winick, J.).
Ordered that the order is reversed, insofar as appealed from, as a matter of discretion, with costs, that branch of the defendant's cross motion which was to dismiss the complaint is granted, and the complaint is dismissed.
In November 1989 the defendant demanded from the plaintiff the production of certain tape recordings. In March 1990 the Supreme Court granted the defendant's unopposed motion for an order compelling the production of these tapes. The plaintiff eventually produced a single tape.
In subsequent depositions, the plaintiff was extremely evasive with respect to the existence and whereabouts of the remaining tapes. Throughout 1990 the plaintiff was uncooperative. On February 26, 1991, the plaintiff's deposition resumed, and he testified that he had willfully destroyed all but the one tape he had previously produced. When asked why the tapes had been destroyed, the best the plaintiff could do was to testify, "it was an odd situation".
We agree with the Supreme Court that "[t]he only conclusion * * * is that [the] plaintiff willfully destroyed these tapes". Under these and all the additional circumstances revealed in the record on appeal, the Supreme Court should have unconditionally dismissed the complaint (CPLR 3126; Wolfson v. Nassau County Med. Ctr., 141 A.D.2d 815; Scharlack v. Richmond Mem. Hosp., 127 A.D.2d 580). Bracken, J.P., Lawrence, Santucci and Goldstein, JJ., concur.