| Gotto v Eusebe-Carter |
| 2010 NY Slip Op 00101 [69 AD3d 566] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Christy Gotto, Respondent, v Evelyne Eusebe-Carter et al.,Appellants, et al., Defendants. |
—[*1] Cantor, Lukasik, Dolce & Panepinto, P.C., Buffalo, N.Y. (Edward L. Smith III of counsel),for respondent.
In an action to recover damages for medical malpractice, the defendant White PlainsHospital Center appeals, as limited by its brief, from so much of an order of the Supreme Court,Westchester County (Nicolai, J.), entered October 22, 2008, as granted the plaintiff's motion tostrike its answer for spoliation of evidence, and the defendants Evelyne Eusebe-Carter and JaimeFernandez appeal from the same order.
Ordered that the appeal by the defendants Evelyne Eusebe-Carter and Jaime Fernandez isdismissed as abandoned (see 22 NYCRR 670.8 [e]); and it is further,
Ordered that the order is modified, on the law and in the exercise of discretion, by deletingthe provision thereof granting the plaintiff's motion to strike the answer of the defendant WhitePlains Hospital Center on the ground of spoliation of evidence, and substituting therefor aprovision granting the plaintiff's motion to the extent of directing that an adverse inferencecharge be given at trial with respect to the fetal monitoring data for July 19, 1997, as against thedefendant White Plains Hospital Center, and otherwise denying the motion; as so modified, theorder is affirmed insofar as appealed from by the defendant White Plains Hospital Center,without costs or disbursements.
This medical malpractice action was commenced by the plaintiff, Christy Gotto, the motherof Ryan Gotto (hereinafter Ryan), against, among others, the defendant White Plains HospitalCenter (hereinafter the Hospital) alleging, inter alia, that as a result of the negligence,carelessness, and recklessness of the defendants, Ryan was born prematurely and therebysuffered severe and permanent injury, including cerebral palsy, spastic quadriplegia,gastroesophageal reflux disease, and cognitive and speech impairments. In December 2004,before commencing this action, the plaintiff's attorney requested that the Hospital provide himwith the complete medical file for both Ryan and the plaintiff from July 1997 to December 2004.In July 2006, after commencement of the action, the plaintiff's attorney specifically requestedthat the Hospital provide him with, among other things, the fetal monitoring strips for July 19,1997. On November 9, 2006, after the plaintiff's counsel [*2]made several attempts to secure the Hospital's compliance with hisrequest, the Hospital informed the plaintiff's attorney that the fetal monitoring strips he hadrequested "no longer existed." The plaintiff moved to strike the Hospital's answer due tospoliation of evidence.
Under the common-law doctrine of spoliation, when a party negligently loses orintentionally destroys key evidence, thereby depriving the nonresponsible party of the ability toprove its claim, the responsible party may be sanctioned by the striking of its pleading (see Denoyelles v Gallagher, 40 AD3d1027 [2007]; Barahona v Trusteesof Columbia Univ. in City of N.Y., 16 AD3d 445, 445-446 [2005]; Baglio v St.John's Queens Hosp., 303 AD2d 341, 342-343 [2003]). However, a less severe sanction isappropriate where the absence of the missing evidence does not deprive the moving party of theability to establish his or her case (seeGerber v Rosenfeld, 18 AD3d 812 [2005]; Iannucci v Rose, 8 AD3d 437 [2004]). The determination of asanction for spoliation is within the broad discretion of the court (see Dennis v City of New York, 18AD3d 599 [2005]; Allstate Ins. Co. v Kearns, 309 AD2d 776 [2003]).
On this record, the plaintiff did not clearly establish that the Hospital negligently lost orintentionally destroyed the fetal heart monitoring data for July 19, 1997, the date of Ryan's birth.The record fails to rule out the possibility that the central monitoring computer system utilizedby the Hospital in its labor and delivery unit to electronically store fetal heart data onto anoptical disk was properly operating, or the possibility that it malfunctioned on July 19, 1997, dueto no fault of any of the parties involved in this action, and resulting in no fetal heart data beingrecorded or stored for that date. Nor did the plaintiff establish that the unavailability of the fetalheart monitoring data "fatally compromised [her] ability" to prosecute this action (Utica Mut. Ins. Co. v Berkoski Oil Co.,58 AD3d 717, 718 [2009]).
Accordingly, since the plaintiff failed to clearly establish that the Hospital negligently lost orintentionally destroyed the material, the plaintiff was entitled only to the sanction of an adverseinference charge at trial with respect to the fetal heart monitoring data for July 19, 1997, asagainst the Hospital (see Barone v Cityof New York, 52 AD3d 630, 631 [2008]). Moreover, the plaintiff failed to show that thealleged spoliation left her "prejudicially bereft" of the means to prosecute the action against theHospital (Weber v Harley-DavidsonMotor Co., Inc., 58 AD3d 719, 722 [2009]; see Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726, 727 [2008]).Accordingly, the Supreme Court improvidently exercised its discretion in striking the Hospital'sanswer and, instead, should have imposed the lesser sanction of an adverse inference charge attrial with respect to the fetal heart monitoring data for July 19, 1997, as against the Hospital (see Tapia v Royal Tours Serv., Inc., 67AD3d 894 [2009]; Barone v City of New York, 52 AD3d at 631). Fisher, J.P.,Balkin, Hall and Austin, JJ., concur.