| Eremina v Scparta |
| 2014 NY Slip Op 05834 [120 AD3d 616] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| Liudmila Eremina et al., Appellants, v GerardV. Scparta et al., Respondents. |
William Pager, Brooklyn, N.Y., for appellants.
Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for respondents GerardV. Scparta and Maureen E. Scparta.
James J. Toomey, New York, N.Y. (Evy L. Kazansky of counsel), for respondentJunko Funahashi.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Schneier,JHO), dated May 10, 2013, as granted the motion of the defendants Gerard V. Scpartaand Maureen E. Scparta, and that branch of the cross motion of the defendant JunkoFunahashi, which were pursuant to CPLR 3126 to preclude the plaintiffs fromintroducing certain evidence at trial based on spoliation of evidence, and granted thatbranch of the cross motion of the defendant Junko Funahashi which was pursuant toCPLR 3124 to compel the plaintiffs to produce certain MRI films to the extent ofdirecting them to, within 45 days, produce certain MRI films or be precluded fromoffering those MRI films and reports of those MRI films into evidence at trial.
Ordered that the order is modified, on the law and in the exercise of discretion, (1) bydeleting the provision thereof granting the motion of the defendants Gerard V. Scpartaand Maureen E. Scparta, and that branch of the cross motion of the defendant JunkoFunahashi, which were pursuant to CPLR 3126 to preclude the plaintiffs fromintroducing certain evidence at trial based on spoliation of evidence, and substitutingtherefor a provision denying the motion and that branch of the cross motion, and (2) bydeleting the provision thereof granting that branch of the cross motion of the defendantJunko Funahashi which was pursuant to CPLR 3124 to compel the plaintiffs to producecertain MRI films to the extent of directing the plaintiffs to, within 45 days, producecertain MRI films or be precluded from offering those MRI films and reports of thoseMRI films into evidence at trial, and substituting therefor a provision granting thatbranch of the motion to the extent of directing the plaintiffs to, within 45 days, producethose MRI films or copies of those MRI films in their possession, in the possession oftheir counsel, treating physicians, experts, or anyone under their control or, in thealternative, provide an affidavit or affidavits that those MRI films and copies of thoseMRI films are not in their possession or control or the possession or control of theircounsel, treating physicians, experts, or anyone under their control, and, upon theirfailure to comply [*2]therewith, be precluded fromoffering those MRI films and reports in evidence, or testimony relying upon or utilizingthose MRI films at trial; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
On September 6, 2009, the plaintiffs, the operator and passengers in a vehicle,allegedly were injured when their vehicle was involved in a three-car collision withvehicles owned and operated by the defendants on Route I-87. The plaintiffs commencedthis action against the defendants to recover damages for personal injuries. Counsel forthe plaintiffs provided authorizations to counsel for the defendants to obtain the MRIfilms taken at Clearview of Brooklyn Medical, P.C. (hereinafter Clearview), with respectto the plaintiffs Liudmila Eremina and Konstantin Vayner. Counsel for the defendantsGerard V. Scparta and Maureen E. Scparta asked an outside vendor, Exam Works, toperform a radiological review of the films. By letter, an Exam Works radiological reviewsupervisor informed the Scpartas' counsel that Clearview was no longer in business andthat a letter sent to Clearview by certified mail at its last known address had beenreturned to them.
Thereafter, the Scpartas moved pursuant to CPLR 3126 to preclude the plaintiffsfrom introducing Clearview's MRI films taken of Eremina and Vayner, as well as anyevidence as to the findings of those MRI tests. The defendant Junko Funahashicross-moved pursuant to CPLR 3126 for the same relief and pursuant to CPLR 3124 tocompel the plaintiffs to produce the MRI films within 45 days or be precluded fromoffering those MRI films and related reports into evidence at trial. The Supreme Court,inter alia, granted the motion and the cross motion and directed the plaintiffs to producethe subject films within 45 days or be precluded from offering the films and/or thereports relating to the films into evidence at the time of trial.
"Under the common-law doctrine of spoliation, a party may be sanctioned where itnegligently loses or intentionally destroys key evidence" (Neve v City of New York, 117AD3d 1006, 1008 [2014]; see CPLR 3126; Gotto v Eusebe-Carter, 69AD3d 566, 567 [2010]). "Where a party did not discard crucial evidence in an effortto frustrate discovery, and cannot be presumed to be responsible for the disappearance ofsuch evidence, spoliation sanctions are inappropriate" (Cordero v Mirecle Cab Corp.,51 AD3d 707, 709 [2008]; see Shay v Mozer, Inc., 80 AD3d 687, 688 [2011]).
Here, the defendants failed to demonstrate that the plaintiffs lost or destroyed theMRI films, or even that the MRI films are lost or destroyed. Thus, the Supreme Courtimprovidently exercised its discretion in granting the Scpartas' motion, and that branch ofFunahashi's cross motion, which were pursuant to CPLR 3126 to preclude the plaintiffsfrom introducing the MRI films and related evidence at trial based on spoliation ofevidence (see Cordero v Mirecle Cab Corp., 51 AD3d at 709).
Further, CPLR 3101 (a) provides that "[t]here shall be full disclosure of all mattermaterial and necessary in the prosecution or defense of an action, regardless of theburden of proof." In general, "the supervision of disclosure is left to the broad discretionof the trial court, which must balance the parties' competing interests" (Accent Collections, Inc. v CappelliEnters., Inc., 84 AD3d 1283, 1283 [2011]; see Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d694, 695 [2009]).
Here, under the circumstances, the Supreme Court providently exercised itsdiscretion in granting that branch of Funahashi's cross motion which was pursuant toCPLR 3124 to compel the plaintiffs to make the MRI films available for duplication or,pursuant to CPLR 3126, be precluded from offering the films and/or the reports relatedto the films into evidence at the time of trial. However, the Supreme Court should haveafforded the plaintiffs an opportunity to furnish an affidavit or affidavits, in thealternative, attesting to the fact that the MRI films or copies of the films were not in theirpossession or control or the possession and control of their counsel, treating physicians,experts, or anyone under their control. Mastro, J.P., Hall, Lott, Austin and Duffy, JJ.,concur.