OSBORNE v. MERCHANT SQUARE DENTAL PLLC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for dental malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated August 8, 2022.  The order denied the plaintiff's motion pursuant to CPLR 3126 to strike the answers of the defendants Merchant Square Dental, PLLC, and Syed Masihuddin and the defendant Alexander Lee for spoliation of evidence and pursuant to 22 NYCRR 130–1.1 to impose sanctions against the defendants for frivolous conduct.

ORDERED that the order is affirmed, with one bill of costs to the defendants appearing separately and filing separate briefs.

On October 23, 2018, the plaintiff, who was an employee of the defendant Merchant Square Dental, PLLC (hereinafter MSD), allegedly sustained injuries when the defendant Alexander Lee extracted her wisdom teeth, including tooth number 17, at MSD's office.  In November 2019, the plaintiff commenced this action, inter alia, to recover damages for dental malpractice against MSD, Lee, and the defendant Syed Masihuddin, MSD's principal.

During discovery, MSD and Masihuddin produced a one-page “Patient Progress Note[ ]” and a copy of an X-ray from May 2018, which, according to the plaintiff's deposition testimony, was taken in order to test the X-ray machine.  Records obtained from nonparty CVS Pharmacy showed two prescriptions for the plaintiff, Masihuddin's name, and the date of October 24, 2018, the date after the extraction.  However, it is undisputed that Lee failed to make a record of the procedure or any care allegedly provided prior or subsequent to the procedure.

In May 2022, the plaintiff moved pursuant to CPLR 3126 to strike the answer of MSD and Masihuddin and Lee's answer for spoliation of evidence and pursuant to 22 NYCRR 130–1.1 to impose sanctions against the defendants for frivolous conduct based on, among other things, alleged misconduct by Lee's attorney during Lee's deposition.  In an order dated August 8, 2022, the Supreme Court denied the plaintiff's motion.  The plaintiff appeals.

The Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' answers for spoliation of evidence.  “Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” (Gordon v. Field, 234 A.D.3d 823, 824, 226 N.Y.S.3d 267 [internal quotation marks omitted];  see Van DeVeerdonk v. North Westchester Restorative Therapy & Nursing Ctr., 223 A.D.3d 702, 703, 204 N.Y.S.3d 132).  “The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” (Lentz v. Nic's Gym, Inc., 90 A.D.3d 618, 618, 933 N.Y.S.2d 875;  see Holland v. W.M. Realty Mgt., Inc., 64 A.D.3d 627, 629, 883 N.Y.S.2d 555).

“A 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, 26 N.Y.S.3d 218, 46 N.E.3d 601 [internal quotation marks omitted];  see Gordon v. Field, 234 A.D.3d at 824, 226 N.Y.S.3d 267).

On appeal, the plaintiff contends that the defendants had a statutory duty to maintain her records (see Education Law § 6530[32];  8 NYCRR 29.2[a][3] ) and that the defendants' failure to create records in the first instance constituted spoliation.  However, “[s]poliation is the destruction of evidence,” whether intentionally or negligently (Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 173, 666 N.Y.S.2d 609).  Contrary to the plaintiff's contention, failing to create records in the first instance is not sufficiently analogous to destroying or failing to preserve evidence that was already in existence (see Caruso v. Marcovici, 20 A.D.3d 499, 500, 799 N.Y.S.2d 122;  Carroll v. City of New York, 287 A.D.2d 430, 431, 730 N.Y.S.2d 548;  see also Krin v. Lenox Hill Hosp., 88 A.D.3d 597, 597, 931 N.Y.S.2d 65;  cf.  CB v. Howard Sec., 158 A.D.3d 157, 168, 69 N.Y.S.3d 587;  Coleman v. Putnam Hosp. Ctr., 74 A.D.3d 1009, 1011, 903 N.Y.S.2d 502).

Further, the Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to 22 NYCRR 130–1.1 to impose sanctions.  Although Lee's attorney at times interrupted questioning during Lee's deposition, this conduct “was not so egregious as to rise to the level of frivolous conduct sufficient to warrant the imposition of monetary sanctions and the award of costs pursuant to 22 NYCRR 130–1.1” (Pinnock v. Mercy Med. Ctr., 180 A.D.3d 1086, 1088, 119 N.Y.S.3d 566).

The plaintiff's remaining contention is without merit.

Appeal from an order of the Supreme Court, Orange County, dated August 8, 2022.  Motion by the respondents Merchant Square Dental, PLLC, and Syed Masihuddin to strike stated portions of the reply brief on the ground that they refer to matter dehors the record and improperly raise arguments for the first time in reply.  By decision and order on motion of this Court dated November 1, 2024, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is granted, and the portion of the paragraph beginning on page 5 with the words “Appellant replies” through the remainder of the paragraph ending on page 6 with the words “it was spoliated” and the sentence beginning on page 12 with the words “In reply to this” and ending on page 13 with a citation to a NYSCEF document number are stricken and have not been considered in the determination of the appeal.

CONNOLLY, J.P., WARHIT, VOUTSINAS and GOLIA, JJ., concur.