| Jennings v Orange Regional Med. Ctr. |
| 2013 NY Slip Op 00064 [102 AD3d 654] |
| January 9, 2013 |
| Appellate Division, Second Department |
| Ann Jennings, Respondent, v Orange RegionalMedical Center, Appellant. |
—[*1] Arnold I. Bernstein, White Plains, N.Y., for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendantappeals, as limited by its brief, from so much of an order of the Supreme Court, OrangeCounty (Slobod, J.), dated November 21, 2011, as granted the plaintiff's motion pursuantto CPLR 3126 to strike its answer on the ground of spoliation of evidence to the extentof precluding it from offering certain evidence at trial.
Ordered that the order is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof granting the plaintiff's motion to the extent of precludingthe defendant from introducing certain evidence at trial, and substituting therefor aprovision granting the plaintiff's motion only to the extent of directing that a negativeinference charge be given at trial; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
On November 25, 2007, the plaintiff, while a patient at the defendant, OrangeRegional Medical Center, allegedly was assaulted by another patient. Shortly after theincident, the plaintiff's attorney sent a letter to the defendant requesting that it preserveall records of the incident in its possession, including videotape footage. This letterapparently was stapled to the back of the plaintiff's file and never forwarded to thedefendant's Department of Risk Management. As a result, any videotape footage of theincident that may have existed was, in the ordinary course of business, overwritten bynew videotape footage within approximately 30 days after the date of the recording. In orabout May 2010, the plaintiff commenced this action against the defendant alleging, interalia, negligent supervision. After joinder of issue, and after the defendant deniedpossessing videotape footage of the incident, the plaintiff moved pursuant to CPLR 3126to strike the defendant's answer on the ground of spoliation of evidence. The SupremeCourt granted the motion to the extent of precluding the defendant from introducingevidence at trial that the alleged perpetrator was being supervised by its employees at thetime of the incident.
Under the common-law doctrine of spoliation, "when a party negligently loses orintentionally destroys key evidence, thereby depriving the non-responsible party frombeing able to prove its claim or defense, the responsible party may be sanctioned by thestriking of its pleading" (Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2007][internal quotation marks omitted]; see Coleman v Putnam Hosp. Ctr., 74 AD3d 1009, 1011[2010]). "Recognizing that striking a pleading is a drastic sanction to impose in theabsence of willful or contumacious conduct, courts will consider the prejudice thatresulted from the spoliation to determine whether such drastic relief is necessary as amatter of fundamental fairness" (Iannucci v Rose, 8 AD3d 437, 438 [2004]). Precluding aparty from presenting evidence at trial is also a drastic sanction (see Light v Light, 64 AD3d633, 634 [2009]) which generally requires a showing that a party's lack ofcooperation with discovery was willful, deliberate, or contumacious (see Pepsico, Inc. v Winterthur Intl.Am. Ins. Co., 24 AD3d 742 [2005]). Less severe sanctions for spoliation ofevidence are appropriate where the missing evidence does not deprive the moving partyof the ability to establish his or her defense or case (see Barone v City of New York, 52 AD3d 630, 631 [2008];Iannucci v Rose, 8 AD3d at 438).
Here, the record does not demonstrate that the plaintiff has been left " 'prejudiciallybereft' " (Fossing v TownsendManor Inn, Inc., 72 AD3d 884, 885 [2010], quoting Weber v Harley-Davidson MotorCo., Inc., 58 AD3d 719, 722 [2009]) of the means of prosecuting her claim, asshe can testify about how and where the incident occurred and subpoena otherindividuals who may have witnessed the incident. Accordingly, the Supreme Courtimprovidently exercised its discretion in granting the plaintiff's motion to the extent ofprecluding the defendant from introducing at trial evidence that the alleged perpetratorwas being supervised by its employees. Under the circumstances of this case, anappropriate sanction would be to direct that a negative inference charge be given at trialwith respect to the unavailable videotape footage (see Mendez v La Guacatala, Inc., 95 AD3d 1084, 1085[2012]; Shayovich v 800 OceanParkway Apt. Corp., 77 AD3d 814, 816 [2010]; Barone v City of NewYork, 52 AD3d at 631).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Dillon,Leventhal and Chambers, JJ., concur.