GOMEZ v. (and a third-party action). (2001)

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Kings County (G. Aronin, J.), dated June 21, 1999, as denied their motion to dismiss the complaint or preclude the introduction of evidence on the ground that the plaintiff had lost certain magnetic resonance imaging films.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in denying the appellants' motion.   The appellants did not show that the plaintiff's loss of certain magnetic resonance imaging (hereinafter MRI) films was willful, contumacious, or in bad faith (see, CPLR 3126;  cf., Birch Hill Farm v. Reed, 272 A.D.2d 282, 707 N.Y.S.2d 188).   Moreover, the appellants' spoliation claims were unsupported by any proof establishing that the missing MRI films were of any significance (cf., DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 682 N.Y.S.2d 452).