LISA v. GENESEE HOSPITAL (2008)

 Plaintiffs commenced this medical malpractice action seeking damages for injuries sustained by the infant plaintiff during her birth at defendant The Genesee Hospital (Hospital).   We reject the contention of plaintiffs that Supreme Court erred in denying their amended motion to strike defendants' answers or, in the alternative, to deem the issues of liability and causation resolved in favor of plaintiffs based on defendants' spoliation of evidence.   The determination whether to impose a sanction for spoliation of evidence lies in the sound discretion of the court (see Steuhl v. Home Therapy Equip., Inc., 23 A.D.3d 825, 826, 803 N.Y.S.2d 791;  see also Miller v. Weyerhaeuser Co., 3 A.D.3d 627, 628, 771 N.Y.S.2d 200, lv. dismissed 3 N.Y.3d 701, 785 N.Y.S.2d 28, 818 N.E.2d 670, appeal dismissed 5 N.Y.3d 822, 804 N.Y.S.2d 32, 837 N.E.2d 732;  Hulett v. Niagara Mohawk Power Corp., 1 A.D.3d 999, 1002, 768 N.Y.S.2d 535).   Here, the court denied the motion upon determining, inter alia, that plaintiffs failed to establish that the evidence allegedly lost or destroyed by defendants ever existed (see generally Osinski v. Taefi, 13 A.D.3d 1205, 1206, 787 N.Y.S.2d 591), and we cannot conclude on the record before us that the court abused its discretion.

 We reject plaintiffs' further contention that the court erred in granting the cross motion of the Hospital for summary judgment dismissing the amended complaint against it.   The Hospital met its initial burden by establishing that it acted in accordance with good and accepted medical practice in the field of obstetrics and gynecology at the time of the infant plaintiff's birth (see generally Santangelo v. Crouse Med. Group, 209 A.D.2d 942, 619 N.Y.S.2d 981, appeal dismissed 85 N.Y.2d 905, 627 N.Y.S.2d 327, 650 N.E.2d 1329), and plaintiffs failed to submit sufficient evidence in admissible form to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

We have considered plaintiffs' remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: