| Hillman v Sinha |
| 2010 NY Slip Op 07719 [77 AD3d 887] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Robert Hillman et al., Respondents, v Rabi R. Sinha, M.D.,et al., Appellants. |
—[*1] Basso & Associates, P.C., LaGrangeville, N.Y. (Bryan G. Schneider of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, DutchessCounty (Pagones, J.), dated September 29, 2009, as denied their motion to dismiss the secondcause of action pursuant to CPLR 3211 (a) (7), and, in effect, to strike the allegations in the billof particulars corresponding to that cause of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion to dismiss the second cause of action pursuant to CPLR 3211 (a) (7), and, ineffect, to strike the allegations in the bill of particulars corresponding to that cause of action, isgranted.
In 2007 the plaintiff Robert Hillman, a long-time patient of the defendant Rabi R. Sinha,M.D., was diagnosed with cancer by another doctor. Hillman's wife, the plaintiff Donna Hillman,advised Dr. Sinha that she was dissatisfied with the care her husband had received from him andthat her husband would no longer be treating with him. Thereafter, Dr. Sinha, acting through hisprofessional corporation, Rabi R. Sinha Physician, P.C., converted to an electronic medicalrecords system and destroyed Robert Hillman's original medical records after converting them toan electronic format. In 2008 the plaintiffs commenced this action, inter alia, to recover damagesfor medical malpractice. The plaintiffs' second cause of action sought recovery of damages fornegligent spoliation of evidence based upon the destruction of Robert Hillman's original medicalrecords at a time when the appellants knew or should have known of the need to preserve themfor "potential future litigation." The appellants moved to dismiss the second cause of actionpursuant to CPLR 3211 (a) (7) and, in effect, to strike the corresponding allegations in the bill ofparticulars, contending that New York does not recognize an independent cause of action torecover damages for negligent spoliation of evidence. In the order appealed from, the SupremeCourt, inter alia, denied the motion. We reverse the order insofar as appealed from.
In Ortega v City of New York(9 NY3d 69, 73 [2007]), the Court of Appeals held that no independent tort of third-partynegligent spoliation of evidence was cognizable in New York. The Court [*2]reasoned that such a tort would require resort to "hypotheticaltheories or speculative assumptions about the nature of the harm incurred or the extent ofplaintiff's damages" (id. at 81). In any event, the Court found that "existing New Yorkremedies" were adequate to "deter spoliation" and to "appropriately compensate its victims"(id. at 79).
Given the Court's reasoning and holding, we see no reason to hold otherwise with respect toa proposed independent tort of "first-party negligent spoliation." As the Court of Appealsrecognized in Ortega, New York courts have "broad discretion to provide proportionaterelief to the party deprived of the lost evidence," including preclusion of proof favorable to thespoliator, adverse inference instructions, or, in extreme cases, striking responsive pleadings ordismissing the complaint (id. at 76; see CPLR 3126; Dean v Usine Campagna, 44 AD3d603, 605 [2007]; Horace Mann Ins. Co. v E.T. Appliances, 290 AD2d 418 [2002]).Accordingly, we reverse the Supreme Court's order denying the appellants' motion to dismiss thesecond cause of action pursuant to CPLR 3211 (a) (7), and, in effect, to strike the allegations inthe bill of particulars corresponding to that cause of action. Fisher, J.P., Santucci, Eng and Sgroi,JJ., concur.