& Record, LLP, Bayside, NY (Sang J. Sim of counsel), for
McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes,
Brooklyn, NY, of counsel), for respondent.
C. DILLON, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, ROBERT
J. MILLER, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiffs appeal from an order of the Supreme Court, Kings
County (Schneier, J.H.O.), dated September 21, 2015, which
granted the defendant's motion pursuant to CPLR 3126 to
preclude the plaintiffs from introducing certain evidence at
trial based on spoliation of evidence.
that the order is reversed, on the facts and in the exercise
of discretion, and the defendant's motion pursuant to
CPLR 3126 to preclude the plaintiffs from introducing certain
evidence at trial based on spoliation of evidence is denied.
2014, the plaintiffs commenced this action against the
defendant to recover damages for personal injuries they
sustained in a motor vehicle accident. Approximately six
weeks after the accident, the plaintiff Gaoming You
(hereinafter the plaintiff) had an MRI performed on the
cervical and lumbar regions of his spine and both shoulders
at Doshi Diagnostic Imaging Services, P.C. (hereinafter
Doshi). In March 2015, the plaintiff provided an
authorization to the defendant to obtain his medical records,
including any radiological films. However, when the defendant
sought to utilize the authorization, Doshi advised the
defendant's counsel that the plaintiff's original MRI
films had been destroyed in its database system. Thereafter,
the defendant moved pursuant to CPLR 3126 to preclude the
plaintiffs from introducing at trial any evidence or
testimony derived from the MRI films. The Supreme Court
granted the defendant's motion.
the common-law doctrine of spoliation, a party may be
sanctioned where it negligently loses or intentionally
destroys key evidence (see CPLR 3126; Cioffi v
S.M. Foods, Inc., 142 A.D.3d 520, 524; Doviak v
Finkelstein & Partners, LLP, 137 A.D.3d 843,
845-846; Morales v City of New York, 130 A.D.3d 792,
793; Eremina v Scparta, 120 A.D.3d 616, 617). The
party requesting sanctions for spoliation has the burden of
demonstrating that a litigant intentionally or negligently
disposed of critical evidence, and fatally compromised its
ability to prove its claim or defense (see Cioffi v S.M.
Foods, Inc., 142 A.D.3d at 524; Doviak v Finkelstein
& Partners, LLP, 137 A.D.3d at 846; Morales v
City of New York, 130 A.D.3d at 793; Lentini v
Weschler, 120 A.D.3d 1200, 1201).
determination of the appropriate sanction for spoliation is
within the broad discretion of the court (see Ortega v
City of New York, 9 N.Y.3d 69, 76; Biniachvili v
Yeshivat Shaare Torah, Inc., 120 A.D.3d 605, 606;
Ortiz v Bajwa Dev. Corp., 89 A.D.3d 999). This Court
will substitute its judgment for that of the Supreme Court if
that court's discretion was improvidently exercised
(see Doviak v Finkelstein & Partners, LLP, 137
A.D.3d at 846; Morales v City of New York, 130
A.D.3d at 793; Samaroo v Bogopa Serv. Corp., 106
A.D.3d 713, 714).
the plaintiffs, who were never in possession of the MRI
films, did not willfully discard the MRI films. Furthermore,
under the circumstances, the plaintiffs cannot be held
responsible for a nonparty's loss of the MRI films
(see Eremina v Scparta, 120 A.D.3d at 618; Shay
v Mozer, Inc., 80 A.D.3d 687, 688; Fotiou v
Goodman, 74 A.D.3d 1140, 1141; Cordero v Mirecle Cab
Corp., 51 A.D.3d 707, 709). In any event, the defendant,
who obtained copies of the MRI reports prepared by Doshi,
failed to show that the MRI films were central to the case or
that their destruction severely prejudiced his ability to
defend the action (see Gagliardi v Preferred Mut. Ins.
Co., 102 A.D.3d 741, 742; Fireman's Fund Ins.
Co. v Sweeney & Harkin Carpentry & Dry Wall
Corp., 78 A.D.3d 650, 651; Awon v Harran Transp.
Co., Inc., 69 A.D.3d 889).
the defendant's motion pursuant to CPLR 3126 to preclude
the plaintiffs from introducing at trial any evidence or