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Gray v. Jaeger

Appellate Division of the Supreme Court of New York, First Department
Apr 28, 2005
17 A.D.3d 286 (N.Y. App. Div. 2005)

Opinion

5962N.

April 28, 2005.

Order, Supreme Court, Bronx County (Nelson Roman, J.), entered November 9, 2004, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to strike the answer only to the extent of allowing an adverse inference with respect to defendant's failure to produce her medical records, unanimously modified, on the law and the facts, to the extent of striking the answer, and otherwise affirmed, with costs in favor of plaintiff, payable by defendant.

Reardon Sclafani, P.C., Tarrytown (Michael V. Sclafani of counsel), for appellant.

Brown Tarantino, LLP, Buffalo (Ann M. Campbell of counsel), for respondent.

Before: Buckley, P.J., Sullivan, Ellerin, Williams and Catterson, JJ.


Although defendant's conduct in failing to maintain plaintiff's medical records was not necessarily contumacious, it was clearly negligent. Defendant breached his ethical and statutory duty to retain plaintiff's medical records for at least six years (Education Law § 6530; 8 NYCRR 29.2 [a] [3]). Since this failure deprived plaintiff of any means of establishing a prima facie case, the striking of defendant's answer is the appropriate remedy ( Herrera v. Matlin, 303 AD2d 198; see also Cabasso v. Goldberg, 288 AD2d 116).


Summaries of

Gray v. Jaeger

Appellate Division of the Supreme Court of New York, First Department
Apr 28, 2005
17 A.D.3d 286 (N.Y. App. Div. 2005)
Case details for

Gray v. Jaeger

Case Details

Full title:MICHELE GRAY, Appellant, v. LAWRENCE JAEGER, D.O., Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 28, 2005

Citations

17 A.D.3d 286 (N.Y. App. Div. 2005)
794 N.Y.S.2d 324

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