This case is not published in a printed volume and its disposition appears in a table in the reporter.
Radna & Androsiglio, LLP Attorneys for Plaintiffs
Geisler & Gabrielle Attorneys for Defendants
Douglas Livingston, D.P.M. and Michael Livingston, D.P.M. Furey, Kerley, Walsh, et al. Attn: Cornelius M. Cawley, Esq. Attorneys for Defendant New Island Hospital
Thomas P. Phelan, J.
The motions by defendants, Douglas Livingston, D.P.M. and Michael Livingston, D.P.M. ("Livingston") and New Island Hospital, for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is granted. The cross-motion by plaintiffs for an order pursuant to CPLR 3126 striking the answer of defendant, New Island Hospital, is denied.
This is an action to recover damages for podiatric malpractice and lack of informed consent. Plaintiffs allege that defendants, Livingston, negligently cared for and treated plaintiff, Deborah Barbato, from August 7, 2002, through and including November 8, 2002, and that the hospital was negligent in its care of her when she underwent surgery there on October 3, 2002.
Defendants seek dismissal of the complaint and plaintiffs seek to strike the hospital's answer based on its spoliation of evidence, to wit: radiologic films.
The pertinent facts are as follows:
Mrs. Barbato first went to the Livingstons' medical office on August 7, 2002. She presented with a congenital condition: a foreshortened and dorsally elevated fourth toe in her right foot. Her medical chart indicates that she saw Dr. Douglas Livingston and complained of pain in the fourth toe of her right foot which was affecting her gait and causing pain about her right knee. However, at her examination before trial, Mrs. Barbato testified that she only complained that her fourth toe was raised and that she was experiencing blisters. She also testified that she told Dr. Douglas Livingston that she had taped her toe down which had affected her gait. Upon examination, Dr. Douglas Livingston noted a shortened and dorsally elevated fourth digit on her right foot with pain upon palpation of the region and that the second and third digits were deviated laterally. He also noted pain along the plantar aspect of the fifth metatarsal head region of her right foot. Mrs. Barbato's medical chart states:
3) Discussed treatment options with patient including conservative and surgical management of conditions. Patient states that conservative measures have not been helpful in reducing her symptoms and is interested in surgical management. I discussed treatment options with patient including arthroplasty 4th digit and/or bone graphing of the 4th metatarsal as well as possible Ilizarov type procedure in an attempt to lengthen the shortened 4th metatarsal.
4) Patient will consider all options.
Mrs. Barbato returned to the Livingstons' office for a second visit on August 28, 2002, and was seen by both of the Livingston ...