| Hannah v Chorney |
| 2010 NY Slip Op 09000 [79 AD3d 468] |
| December 7, 2010 |
| Appellate Division, First Department |
| Joshua Hannah et al., Appellants, v Gail Chorney, M.D., et al.,Respondents. |
—[*1] Ellenberg & Partners, LLP, New York (Michael A. Ellenberg of counsel), for Gail Chorney, M.D.,respondent. Mauro Goldberg & Lilling LLP, Great Neck (Anthony F. DeStefano of counsel), for New YorkPresbyterian Hospital and Columbia Presbyterian Medical Center, respondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 30, 2009, which, to theextent appealed from as limited by the briefs, denied plaintiff's motion to strike defendants' answers as asanction for spoliation, unanimously affirmed, without costs.
The absence of the operative report did not deprive plaintiff of means for establishing a prima faciecase (see e.g. Orloski v McCarthy, 274 AD2d 633, 635-636 [2000], lv denied 95NY2d 767 [2000]; cf. Gray v Jaeger, 17AD3d 286 [2005]). Therefore, striking the answers would have constituted too drastic a remedy.The court properly granted plaintiff's alternative request for dismissal of the action.
We have considered the parties' remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Acosta, Richter, Abdus-Salaam and RomÁn, JJ.