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You v. Rahmouni

Supreme Court of New York, Second Department

February 1, 2017

Gaoming You, et al., appellants,
v.
Mohamed Hicham Rahmouni, respondent. Index No. 508679/14

          Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellants.

          Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent.

          MARK C. DILLON, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an 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.

         ORDERED 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.

         In 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.

         Under 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).

         The 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).

         Here, 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).

         Accordingly, the defendant's motion pursuant to CPLR 3126 to preclude the plaintiffs from introducing at trial any evidence or testimony ...


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