Ahmuty, Citrin & Spratt, LLP, Lake Success, NY
(Christopher Simone and Yelena Ambartsumian of counsel), for
Gordon Timko & Rodriques, P.C., New York, NY (Nicholas I.
Timko of counsel), for respondent.
E. CHAMBERS, J.P., L. PRISCILLA HALL, ROBERT J. MILLER,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice and wrongful death, the defendants North
Shore-Long Island Jewish Health System, Inc., Long Island
Jewish Medical Center, and Frank Manetta appeal from so much
of an order of the Supreme Court, Queens County
(O'Donoghue, J.), dated March 31, 2015, as granted the
plaintiff's motion to impose sanctions against them for
the willful spoilation and destruction of evidence to the
extent of precluding them from contesting that a suture
failed for any reason other than the actions of the surgeon
and/or asserting a defense at trial that the suture was
defective or unsafe. By decision and order on motion dated
August 10, 2015, this Court granted the defendants'
motion to stay the trial pending hearing and determination of
that the order is reversed insofar as appealed from, on the
facts and in the exercise of discretion, with costs, and the
plaintiff's motion to impose sanctions against the
defendants North Shore-Long Island Jewish Health System,
Inc., Long Island Jewish Medical Center, and Frank Manetta is
Supreme Court granted the plaintiff's motion to impose
sanctions against the defendants North Shore-Long Island
Jewish Health System, Inc., Long Island Jewish Medical
Center, and Frank Manetta (hereinafter collectively the
defendants) for the willful spoliation and destruction of
evidence to the extent of precluding the defendants from
contesting that a suture failed for any reason other than the
actions of the surgeon and/or asserting a defense at trial
that the suture was defective or unsafe.
party that seeks sanctions for spoliation of evidence must
show that the party having control over the evidence
possessed an obligation to preserve it at the time of its
destruction, that the evidence was destroyed with a culpable
state of mind, ' and that the destroyed evidence was
relevant to the party's claim or defense such that the
trier of fact could find that the evidence would support that
claim or defense'" (Pegasus Aviation I, Inc. v
Varig Logistica S.A., 26 N.Y.3d 543, 547, quoting
VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93
A.D.3d 33, 45). Where evidence has been intentionally or
willfully destroyed, its relevance is presumed (see
Pegasus Aviation I, Inc. v Varig Logistica S.A., 26
N.Y.3d at 547). However, where evidence has been destroyed
negligently, the party seeking spoliation sanctions must
establish that the destroyed evidence was relevant to the
party's claim or defense (see id. at 547-548).
Supreme Court has broad discretion in determining what, if
any, sanction should be imposed for the spoliation of
evidence (see id. at 551; Ortiz v Bajwa Dev.
Corp., 89 A.D.3d 999, 999; Iannucci v Rose, 8
A.D.3d 437, 438). Moreover, "[t]he court may, under
appropriate circumstances, impose a sanction even if the
destruction occurred through negligence rather than
wilfulness, and even if the evidence was destroyed before the
spoliator became a party, provided it was on notice that the
evidence might be needed for future litigation'"
(Ortiz v Bajwa Dev. Corp., 89 A.D.3d at 999, quoting
DiDomenico v C & S Aeromatik Supplies, 252
A.D.2d 41, 53; see Samaroo v Bogopa Serv. Corp., 106
A.D.3d 713, 714; Iannucci v Rose, 8 A.D.3d at 438).
day after the decedent underwent quadruple vessel coronary
artery bypass grafting performed by Manetta, a cardiothoracic
surgeon, the decedent experienced an acute onset of massive
bleeding. Thereafter, during a second operation to
resuscitate the decedent and repair the anastomosis, Manetta
observed that a stitch had broken at the base of the knot.
The stitch was discarded during the second operation and was
not sent to any laboratory for analysis.
plaintiff moved to impose sanctions against the defendants
based on spoliation of evidence, contending that the
destruction of the broken suture deprived her of vital
evidence necessary to respond to any defense claim that a
defective suture or other force was the cause of the failed
anastomosis and not a departure from good medical and
surgical care. In response to the plaintiff's motion, the
defendants submitted the affirmation of a medical expert, who
opined that the defendants did not depart from the standard
of care by discarding the broken suture and that preservation
of the broken suture was immaterial to determining the cause
of the failed anastomosis.
the circumstances presented, the Supreme Court improvidently
exercised its discretion in granting the plaintiff's
motion to impose sanctions against the defendants for the
wilful spoilation and destruction of evidence, as the
plaintiff failed to demonstrate that the defendants were
obligated to preserve the broken suture at the time of its
destruction, that the suture was destroyed with a
"culpable state of mind, " and/or that the
destroyed suture was relevant to the plaintiff's claim
(Pegasus Aviation I, Inc. v Varig Logistica S.A., 26
N.Y.3d at 547; see Geffner v North Shore Univ.
Hosp.,57 A.D.3d 839; Diaz v Rose, 40 A.D.3d
429; Hemingway v New York City Health & Hosps.
Corp.,13 A.D.3d 484; Iannucci v Rose, 8 A.D.3d
437; cf. Coleman v Putnam Hosp. Ctr., 74 A.D.3d
1009). In any event, the plaintiff failed to establish that