SMITH v. NEW YORK CITY HEALTH HOSPITALS CORPORATION (2001)

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about January 12, 2000, which, to the extent appealed from, denied plaintiffs' motion for leave to proceed on a theory of alternative liability and for spoliation sanctions and granted defendants' cross motions for summary judgment dismissing the complaint as against defendants New York Blood Center and American Association of Blood Banks, Inc., and dismissing plaintiffs' claims against defendant New York City Health and Hospitals Corporation for blood bank negligence, unanimously affirmed, without costs.

 Since defendant hospital disposed of the subject blood donor records in a manner consistent with regulatory requirements (see, 10 NYCRR § 58-2.10[a] ), pursuant to a business routine (see, Roberts v. Cons. Edison, 273 A.D.2d 369, 370, 709 N.Y.S.2d 204), and before plaintiffs' negligent screening theory was an issue (cf., Strelov v. Hertz Corp., 171 A.D.2d 420, 421, 566 N.Y.S.2d 646), the denial of plaintiffs' demand for spoliation sanctions (see, generally, Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 666 N.Y.S.2d 609) was not an abuse of discretion (see, Hartford Fire Ins. Co. v. Regenerative Bldg. Constr., 271 A.D.2d 862, 863-864, 706 N.Y.S.2d 236).   Plaintiffs' alternative liability theory was properly rejected in light of, inter alia, plaintiffs' conceded failure to satisfy “the critical element of alternative liability that all possible tortfeasors be present before the court” (see, New York Tel. Co. v. AAER Sprayed Insulations, 250 A.D.2d 49, 55, 679 N.Y.S.2d 21).

Having so concluded, we need not and do not reach the municipal hospital defendant's argument that the notice of claim is substantively insufficient, which, in any event, is raised for the first time on appeal (see, Velazquez v. City of New York, 211 A.D.2d 475, 621 N.Y.S.2d 861).   For the same reason, we need not and do not reach the issue of whether or not defendant trade association promulgated industry standards in such a manner that it owed a duty of due care to plaintiffs.

We have considered plaintiffs' remaining arguments and find them unavailing.