| Fotiou v Goodman |
| 2010 NY Slip Op 05511 [74 AD3d 1140] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Pelagi Fotiou et al., Respondents, v Allen Goodman et al.,Appellants, et al., Defendant. |
—[*1] Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser andMary Anne Walling of counsel), for respondents.
In an action to recover damages for medical malpractice, etc., the defendants AllenGoodman, Storch, Sheinbrot & Singer, Physicians, P.C., and Storch, Sheinbrot & Singer, P.C.,appeal from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated June 12,2009, which denied their motion for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
In a medical malpractice action, the proponent of a summary judgment motion must make aprima facie showing of the absence of any departure from good and accepted medical practice,or that the plaintiff was not injured thereby (see Swezey v Montague Rehab & Pain Mgt., P.C., 59 AD3d 431,433 [2009]; Larsen v Loychusuk,55 AD3d 560 [2008]; Chance vFelder, 33 AD3d 645 [2006]).
Here, the appellants failed to establish their prima facie entitlement to judgment as a matterof law. They failed to affirmatively demonstrate the merits of their defense and, as the movingparty, could not carry their burden by merely pointing to gaps in the plaintiffs' proof (see Velasquez v Gomez, 44 AD3d649, 650-651 [2007]; Vittorio vU-Haul Co., 52 AD3d 823 [2008]; Pappalardo v Long Is. R.R. Co., 36 AD3d 878, 880 [2007];Pace v International Bus. Mach. Corp., 248 AD2d 690, 691 [1998]). As the appellantsfailed to meet their prima facie burden, we need not address the sufficiency of the plaintiffs'opposing papers (see Vera vSoohoo, 41 AD3d 586, 588 [2007]; see generally Alvarez v Prospect Hosp., 68NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Moreover, contrary to the appellants' contentions, the apparent loss of the sonogram filmsdoes not require the dismissal of the pleadings. "Where a party did not discard crucial evidencein an effort to frustrate discovery, and cannot be presumed to be responsible for thedisappearance of such evidence, spoliation sanctions are inappropriate" (Cordero v Mirecle Cab Corp., 51AD3d 707, 709 [2008]; see O'Reilly v Yavorskiy, 300 AD2d 456, 457 [2002]).Here, the plaintiffs were never in possession of the sonogram films and did not discard thosefilms in an effort to frustrate discovery. Under such circumstances, the plaintiffs, [*2]who also were prejudiced, cannot be held liable for such a loss(see Cordero v Mirecle Cab Corp., 51 AD3d at 709; O'Reilly v Yavorskiy, 300AD2d at 457; McLaughlin v Brouillet, 289 AD2d 461 [2001]).
Accordingly, the Supreme Court correctly denied the appellants' motion for summaryjudgment dismissing the complaint insofar as asserted against them. Skelos, J.P., Santucci,Dickerson and Leventhal, JJ., concur.