FALCONE v. KARAGIANNIS

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

Lisa FALCONE, etc., respondent-appellant, v. George KARAGIANNIS, etc., et al., appellants-respondents.

Decided: March 06, 2012

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SHERI S. ROMAN, JJ. Helwig, Henderson, Ryan & Spinola, Carle Place, N.Y. (Maureen P. Blazowski of counsel), for appellants-respondents. Debra S. Reiser, New York, N.Y., for respondent-appellant.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendants appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Palmieri, J.), entered August 18, 2010, as denied that branch of their motion which was to depose a certain nonparty witness upon an open commission pursuant to CPLR 3108, (2) stated portions of an order of the same court entered September 10, 2010, which, among other things, denied that branch of their separate motion which was to strike the complaint due to spoliation of evidence, and (3) stated portions of an order of the same court entered April 6, 2011, which, upon renewal, inter alia, adhered to the original determination in the order entered September 10, 2010, denying that branch of their separate motion which was to strike the complaint due to spoliation of evidence, and the plaintiff cross-appeals, as limited by her brief, from so much of the order entered April 6, 2011, as, upon renewal, vacated the determination in the order entered August 18, 2010, denying that branch of the defendants' motion which was to depose a certain nonparty witness upon an open commission pursuant to CPLR 3108, and thereupon granted that branch of the defendants' motion and directed her to disclose certain records and materials obtained, produced, or created by that witness.

ORDERED that the defendants' appeal from so much of the order entered August 18, 2010, as denied that branch of their motion which was to depose a certain nonparty witness upon an open commission pursuant to CPLR 3108 is dismissed, without costs or disbursements, as that portion of the order was superseded by the order entered April 6, 2011, made upon renewal;  and it is further,

ORDERED that the defendants' appeal from stated portions of the order entered September 10, 2010, is dismissed, without costs or disbursements, as those portions of the order were superseded by the order entered April 6, 2011, made upon renewal;  and it is further,

ORDERED that the order entered April 6, 2011, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

 To support a determination of sanctions pursuant to CPLR 3126, the moving party must demonstrate that the responsible party's actions were “willful and contumacious” (Denoyelles v. Gallagher, 40 A.D.3d 1027, 1027, 834 N.Y.S.2d 868;  see Anthony v. Anthony, 24 A.D.3d 694, 807 N.Y.S.2d 394).  “Similarly, under the common-law doctrine of spoliation, ‘when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading’ ” (Denoyelles v. Gallagher, 40 A.D.3d at 1027, 834 N.Y.S.2d 868, quoting Baglio v. St. John's Queens Hosp., 303 A.D.2d 341, 342, 755 N.Y.S.2d 427;  see Coleman v. Putnam Hosp. Ctr., 74 A.D.3d 1009, 1011, 903 N.Y.S.2d 502).   The determination of a sanction for spoliation is within the broad discretion of the court (see Greene v. Mullen, 70 A.D.3d 996, 893 N.Y.S.2d 895;  Gotto v. Eusebe–Carter, 69 A.D.3d 566, 568, 892 N.Y.S.2d 191;   Scarano v. Bribitzer, 56 A.D.3d 750, 868 N.Y.S.2d 147), and a court may impose a sanction less severe than the striking of the responsible party's pleading or no sanction “where the missing evidence does not deprive the moving party of the ability to establish his or her case or defense” (Denoyelles v. Gallagher, 40 A.D.3d at 1027, 834 N.Y.S.2d 868).

 Here, the defendants failed to demonstrate that the plaintiff's delay in producing certain photographs and 10 stained microscope slides referenced in the report of her expert pathologist, Dr. Charles Wetli, or her failure to disclose 30 unstained microscope slides from the same tissue blocks used to prepare the stained slides, was willful or contumacious, or deprived the defendants of their ability to establish their defense (see Laskin v. Friedman, 90 A.D.3d 617, 933 N.Y.S.2d 872;  Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 840–841, 871 N.Y.S.2d 617;  Denoyelles v. Gallagher, 40 A.D.3d at 1027, 834 N.Y.S.2d 868).   Accordingly, upon renewal, the Supreme Court providently exercised its discretion in adhering to the original determination denying that branch of the defendants' separate motion which was to strike the complaint due to spoliation of evidence.

The defendants demonstrated that their deposition of the plaintiff's expert pathologist, Dr. Wetli, and production of any additional materials related to the autopsy he performed, were warranted by special circumstances (see CPLR 3101[d][1][iii];  see generally Brooklyn Floor Maintenance Co. v. Providence Washington Ins. Co., 296 A.D.2d 520, 745 N.Y.S.2d 208;  Melendez v. Food Emporium, 243 A.D.2d 264, 662 N.Y.S.2d 500).   Accordingly, upon renewal, the Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was to depose nonparty witness Dr. Wetli upon an open commission pursuant to CPLR 3108 and in directing the plaintiff to disclose certain records and materials obtained, produced, or created by Dr. Wetli.

The parties' remaining contentions either need not be reached in light of our determination, are not properly before this Court, or are without merit.

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