| Lamb v Maloney |
| 2007 NY Slip Op 10517 [46 AD3d 857] |
| December 26, 2007 |
| Appellate Division, Second Department |
| Elaine Lamb, as Administrator of the Estate of Thomas Lamb,Deceased, et al., Appellants, v Kevin Maloney et al., Respondents, et al.,Defendants. |
—[*1] Barry, McTiernan & Moore, New York, N.Y. (Laurel A. Wedinger of counsel), forrespondents.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limitedby their brief, from stated portions of an order of the Supreme Court, Westchester County(Bellantoni, J.), entered May 9, 2006, which, inter alia, denied those branches of their motionwhich were to strike the answers of the defendants Kevin Maloney and Kevin Maloney,Physician, PLLC, pursuant to CPLR 3126 based on spoliation of evidence, among other things,to preclude the defendants Kevin Maloney and Kevin Maloney, Physician, PLLC, from utilizingtheir office records to support their defenses, to compel the depositions of Anderson Rios, MarieZuccarelli, and "any other staff/employees/individuals who had contact with the officecomputers/hard drive," to compel the production of "all documentary evidence regarding the'destruction' of the hard drive, the purchase and formatting of any replacement computer,complete details regarding the date of purchase of the destroyed computer and all softwareutilized, all service and maintenance records for the destroyed computer and complete detailsregarding all back-up mechanisms used" with respect to those defendants, and to permit theplaintiffs to inspect all "current[ ]" computers of those defendants.[*2]
Ordered that the order is modified, on the law and in theexercise of discretion, (1) by deleting the provisions thereof denying those branches of theplaintiffs' motion which were (a) to compel the depositions of Anderson Rios, Marie Zuccarelli,and "any other staff/employees/individuals who had contact with the office computers/harddrive," (b) to compel the production of "all documentary evidence regarding the 'destruction' ofthe hard drive, the purchase and formatting of any replacement computer, complete detailsregarding the date of purchase of the destroyed computer and all software utilized, all service andmaintenance records for the destroyed computer and complete details regarding all back-upmechanisms used" with respect to those defendants, and (c) to permit the plaintiffs to inspect all"current[ ]" computers of those defendants, and substituting therefor provisions granting thosebranches of the motion, and (2) by adding to the denial of those branches of the plaintiffs' motionwhich were to strike the answer of the defendants Kevin Maloney and Kevin Maloney, Physician,PLLC, or, among other things, to preclude those defendants from utilizing their office records tosupport their defenses, a provision that the denial is without prejudice to renewal of thosebranches of the motion; as so modified, the order is affirmed insofar as appealed from, with coststo the plaintiffs.
Trial courts are given broad discretion in determining the nature and degree of the penalty tobe imposed pursuant to CPLR 3126 (see Mayers v Consolidated Charcoal Co., 154 AD2d577 [1989]).
The Supreme Court providently exercised its discretion in denying the plaintiffs' motioninsofar as it sought to strike the answer of the defendants Kevin Maloney and Kevin Maloney,Physician, PLLC (hereinafter together the Maloney defendants) or, among other things, topreclude the Maloney defendants from utilizing their office records to support their defenses andfor a missing-evidence charge. An answer may be stricken by reason of spoliation of evidencewhere there is a clear showing that the party seeking that evidence is " 'prejudicially bereft ofappropriate means to confront a claim with incisive evidence' (Foncette v LA Express,295 AD2d 471, 472 [2002], quoting New York Cent. Mut. Fire Ins. Co. v Turnerson'sElec., 280 AD2d 652, 653 [2001])" (Madison Ave. Caviarteria v Hartford Steam Boiler Inspection & Ins. Co.,2 AD3d 793, 796 [2003]; seealso Kirschen v Marino, 16 AD3d 555 [2005]). Here, the plaintiffs made no suchshowing.
The Supreme Court improvidently exercised its discretion, however, in denying the plaintiffs'alternative request, which was unopposed, to compel additional discovery, including depositionsof certain witnesses, production of records, and inspection of computers. Such additionaldiscovery was reasonably calculated to produce relevant and material evidence and the Maloneydefendants failed to demonstrate any prejudice as a result. Therefore, such additional discoveryshould have been permitted (see Karakostas v Avis Rent A Car Sys., 306 AD2d 381[2003]; see also LaRocca v DeRicco,39 AD3d 486 [2007]; Matter ofVentura, 26 AD3d 334 [2006]). In light of the additional discovery that is to beconducted relevant to the alleged spoliation of evidence, the denial of those branches of theplaintiffs' motion which were to strike the answer of the Maloney defendants or, inter alia, topreclude them from utilizing their office records to support their defenses, should be withoutprejudice to renewal of that branch of the motion (cf. Kreusi v City of New York, 40 AD3d 820 [2007]).
The parties' remaining contentions are without merit. Spolzino, J.P., Krausman, Angiolilloand McCarthy, JJ., concur.