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Supreme Court, Appellate Division, First Department, New York.

Dawn A. MYERS, Plaintiff-Respondent, v. Hyman A. SADLOR, Defendant-Appellant.

Decided: March 22, 2005

TOM, J.P., ANDRIAS, SAXE, FRIEDMAN, NARDELLI, JJ. Barnett & Walter, LLP, Garden City (Jay M. Weinstein of counsel), for appellant. Spiegel & Barbato, LLP, Bronx (Lucille M. Barbato of counsel), for respondent.

Order, Supreme Court, Bronx County (Nelson Roman, J.), entered on or about August 31, 2004, which, to the extent appealed from, denied preclusion of medical evidence at trial due to spoliation, unanimously affirmed, without costs.

The original MRI of plaintiff's cervical spine shortly after the accident was inadvertently “corrupted” and destroyed by the medical imaging facility.   Spoliation sanctions were denied because defendant failed to establish that the unavailability of the MRI film resulted from any intentional or willful act, or would impair his ability to defend against the claim of serious injury (Herbert v. City of New York, 12 A.D.3d 209, 783 N.Y.S.2d 807 [2004] ).   Moreover, defendant has offered no plausible reason to regard the actual MRI film as “crucial” evidence when an abundance of other relevant medical evidence remains available to the parties for the period in question.

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