| Cordero v Mirecle Cab Corp. |
| 2008 NY Slip Op 04459 [51 AD3d 707] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Yanel Cordero et al., Appellants, v Mirecle Cab Corp. etal., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal (1), as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Ruditzky, J.), datedNovember 2, 2006, as granted that branch of the motion of the defendant Mirecle Cab Corp.which was, in effect, pursuant to CPLR 3126 to preclude them from offering certain evidence attrial based on spoliation of evidence, and (2) from an order of the same court dated January 5,2007, which denied their motion, denominated as one for leave to renew and reargue, but whichwas, in actuality, one for leave to reargue.
Ordered that the appeal from the order dated January 5, 2007, is dismissed; and it is further,
Ordered that the order dated November 2, 2006, is reversed insofar as appealed from, on thefacts and in the exercise of discretion, and that branch of the motion of the defendant MirecleCab Corp. which was, in effect, pursuant to CPLR 3126 to preclude the plaintiffs from offeringcertain evidence at trial based on spoliation of evidence is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.[*2]
The appeal from the order dated January 5, 2007, must bedismissed. The plaintiffs' motion, denominated as one for leave to renew and reargue, was, inactuality, one for leave to reargue, because it was not based on new facts (see CPLR 2221[d] [2]). An order denying a motion for leave to reargue is not appealable (see Viola v Blanco, 1 AD3d 506,507 [2003]).
On May 7, 1999, the plaintiffs, who were passengers in a taxicab, allegedly were injuredwhen the cab was involved in an accident with another vehicle. Within a few months of theaccident, the plaintiffs each had magnetic resonance imaging (hereinafter MRI) performed ontheir cervical and lumbar spines.
In 2002 the plaintiffs commenced the instant personal injury action against the defendantMirecle Cab Corp. (hereinafter Mirecle), which allegedly owned the taxicab, and others. In June2003 the plaintiffs provided Mirecle with authorizations for their medical records, including theoriginal MRI films of their cervical and lumbar spines. However, when Mirecle sought to utilizethose authorizations after the note of issue was filed, the medical facility that performed the MRIadvised Mirecle that the original MRI films had accidentally been destroyed.
Mirecle then moved, inter alia, to preclude the plaintiffs from offering at trial any evidencederived from the MRI films. In an order dated November 2, 2006, the Supreme Court, inter alia,granted that branch of Mirecle's motion which was to preclude any evidence derived from theMRI films, finding that the MRI films had been "spoliated." We reverse that order insofar asappealed from.
Although the determination of sanctions for spoliation is within the broad discretion of theSupreme Court (see Denoyelles vGallagher, 40 AD3d 1027 [2007]; Dennis v City of New York, 18 AD3d 599, 600 [2005]; Barahona v Trustees of Columbia Univ. inCity of N.Y., 16 AD3d 445, 446 [2005]), the Supreme Court improvidently exercised itsdiscretion in sanctioning the plaintiffs for the loss of the MRI films. Where a party did notdiscard crucial evidence in an effort to frustrate discovery, and cannot be presumed to beresponsible for the disappearance of such evidence, spoliation sanctions are inappropriate (seeO'Reilly v Yavorskiy, 300 AD2d 456, 457 [2002]; McLaughlin v Brouillet, 289AD2d 461 [2001]). Here, the plaintiffs, who were never in possession of the MRI films, did notdiscard the MRI films in an effort to frustrate discovery. Furthermore, under the circumstances,the plaintiffs cannot be held responsible for a nonparty's accidental loss of the MRI films.Finally, we note that the plaintiffs were prejudiced along with Mirecle by the loss of the MRIfilms (see O'Reilly v Yavorskiy, 300 AD2d at 457; McLaughlin v Brouillet, 289AD2d at 461).
Appeals by the plaintiffs from two orders of the Supreme Court, Kings County, datedNovember 2, 2006, and January 5, 2007, respectively. By separate orders to show cause datedAugust 2, 2007, the parties or their attorneys were directed to show cause before this Court whyan order should or should not be made and entered (1) dismissing the appeal from the order datedNovember 2, 2006, on the ground that the order is one deciding a motion in limine from whichno appeal lies (see Mauro v Village of Freeport, 113 AD2d 876 [1985]), and (2)dismissing the appeal from the order dated January 5, 2007, on the ground that the order is onedenying a motion for leave to renew and reargue a motion in limine from which no appeal lies.By decision and order on application dated September 14, 2007, the motions to dismiss theappeals were held in abeyance and referred to the Justices hearing the appeals for determinationupon the argument or submission thereof.
Upon the orders to show cause and the papers filed in response thereto, and upon thesubmission of the appeals, it is
Ordered that the motion to dismiss the appeal from the order dated November 2, 2006, isdenied; and it is further,
Ordered that the motion to dismiss the appeal from the order dated January 5, 2007, is deniedas academic in light of the determination of the appeals (decided herein). Skelos, J.P., Santucci,Covello, McCarthy and Chambers, JJ., concur.