| Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp.Ctr. |
| 2007 NY Slip Op 08169 [44 AD3d 975] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Anesthesia Associates of Mount Kisco, LLP, et al.,Respondents-Appellants, v Northern Westchester Hospital Center et al.,Appellants-Respondents, et al., Defendant. |
—[*1] McDonough Marcus Cohn Tretter Heller & Kanca, LLP, New Rochelle, N.Y. (Eli S. Cohnand Randy J. Heller of counsel), for appellants-respondents Northern Westchester AnesthesiaServices and David Miller. Morrison Cohen LLP, New York, N.Y. (Donald H. Chase and Kristin T. Roy of counsel), forrespondents-appellants.
In an action, inter alia, to recover damages for breach of contract, the defendants except thedefendant Northeastern Anesthesia Services, P.C., appeal, as limited by their briefs, from somuch of an order of the Supreme Court, Westchester County (Donovan, J.), entered May 3, 2006,as granted that branch of the plaintiffs' motion which was to impose sanctions upon them forspoliation of evidence, and the plaintiffs cross-appeal from so much of the same order as deferreddetermination of the appropriate sanction for spoliation of evidence until the trial of the action.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the cross appeal is dismissed; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.[*2]
The record is clear that, at the time an employee of thedefendant Northern Westchester Hospital Center disposed of the relevant records, therespondents were on notice of the plaintiffs' claims and document demands, and should havemaintained the records, which were clearly relevant to the claims and within the scope of thosedocument demands (see Denoyelles vGallagher, 40 AD3d 1027 [2007]). Accordingly, the Supreme Court properlydetermined that a sanction should be imposed against the respondents for spoliation of evidence.
The Supreme Court deferred determination of the nature of the sanction to be imposed untilthe trial of the action, and the plaintiffs cross-appeal from that portion of the order. However, noappeal lies as of right from an order which defers disposition of a motion until trial (see Kaplan v Rosiello, 16 AD3d626 [2005]). Leave to cross-appeal from the provision of the order which deferreddetermination of the sanction until the trial has not been obtained (see Weissman v Weissman, 8 AD3d264 [2004]), and we decline to grant leave to cross-appeal. Schmidt, J.P., Rivera, Krausmanand Goldstein, JJ., concur.