| Zaytsev v Zelman |
| 2010 NY Slip Op 04179 [73 AD3d 909] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Vladimir Zaytsev, as Administrator of the Estate of YelenaZaytseva, Deceased, Appellant, v Allen B. Zelman, M.D., et al.,Respondents. |
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In an action to recover damages for medical malpractice, the plaintiff appeals, as limited byhis brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), enteredJanuary 7, 2009, as granted that branch of the defendants' motion which was to sanction theplaintiff for spoliation of evidence by precluding him from offering any evidence at the time oftrial with respect to missing radiologic and sonographic films taken on May 13, 2004, and June10, 2004.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof granting that branch of the defendants' motion which was to sanction theplaintiff for spoliation of evidence by precluding him from offering any evidence at the time oftrial with respect to missing radiologic and sonographic films taken on May 13, 2004, and June10, 2004, and substituting therefor a provision granting that branch of the motion only to theextent of precluding the plaintiff's expert Dr. Marc A. Hertz from offering any evidence at thetime of trial with respect to his review and interpretation of the missing radiologic andsonographic films taken on May 13, 2004, and June 10, 2004; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
On April 24, 2001, a mammographic study was performed on the plaintiff's decedent by thedefendant Radiology Associates of Brooklyn, LLP (hereinafter Radiology). That mammogramwas read by doctors associated with Radiology who are not defendants in this action.
Thereafter, the plaintiff's decedent had an additional mammographic study performed atRadiology on May 13, 2004. That mammogram was read by the defendant Dr. Allen B. Zelman,who set out his findings and conclusions as to that mammogram in a report dated May 17, 2004.In that report, he recommended additional views. Thereafter, on June 10, 2004, the plaintiff'sdecedent had an additional mammographic study as well as a sonographic study performed atRadiology. That mammogram and sonogram also were read by Dr. Zelman, who set forth hisfindings and conclusions in two reports dated June 10, 2004, and June 14, 2004, respectively.
Due to certain physical symptoms, the plaintiff's decedent subsequently was referred to theLong Island College Hospital radiology department, and on January 29, 2005, she was diagnosedwith malignant breast cancer. On June 1, 2005, the plaintiff's decedent picked up the May 13thand June 10th mammograms and sonogram from Radiology. Thereafter, her attorneys sent themfor evaluation to Dr. Hertz. At least some of them were eventually read and interpreted by Dr.Hertz.[*2]
It is undisputed that all of the 2004 films were lost whilethey were in the custody of the plaintiff's counsel. The plaintiff's counsel submitted the affidavitsof a paralegal in his office, the affidavit of a temporary cleaning person, and a letter fromplaintiff's counsel concluding that the 2004 films were inadvertently discarded as trash andirretrievably lost.
Subsequently, the defendants moved for summary judgment dismissing the complaint or tosanction the plaintiff for spoliation of evidence by precluding him from offering any evidence atthe time of trial relating to the May 13, 2004, and June 10, 2004, films. The Supreme Court,granted that branch of the motion which was to sanction the plaintiff for spoliation of evidenceby precluding him from offering any evidence at the time of the trial with respect to the missingMay 13, 2004, and June 10, 2004, films and, in effect, denied that branch of the motion whichwas for summary judgment dismissing the action.
The Supreme Court has broad discretion in determining the sanction to be imposed forspoliation of evidence. In examining the penalty imposed for spoliation of evidence, such asadmittedly occurred here, the courts will consider the prejudice that has resulted and determinewhether or not the sanction imposed was appropriate or an improvident exercise of discretion (see generally Iannucci v Rose, 8 AD3d437 [2004]; Allstate Ins. Co. v Kearns, 309 AD2d 776 [2003]). In this instance, thesanction imposed was too broad, and should have been limited to precluding Dr. Hertz fromoffering any evidence at the time of trial with respect to his review and interpretation of themissing films taken on May 13, 2004, and June 10, 2004. Accordingly, we modify the order tothe extent indicated.
The parties' remaining contentions are either academic or improperly raised for the first timeon this appeal. Rivera, J.P., Florio, Miller and Eng, JJ., concur.