refusing to apply "common-law doctrine of spoliation of evidence" where it did not appear that plaintiff would be unable to prove his case without the items of information missing from the copy of the record that defendant provided, or that defendant had otherwise gained an unfair advantage as a result of the missing informationSummary of this case from Fada Indus. v. FALCHI BLDG CO.
March 6, 2001.
Order, Supreme Court, New York County (Stanley Sklar, J.), entered on or about June 6, 2000, which, in a medical malpractice action, insofar as appealed from, denied plaintiff's cross motion to strike defendant-respondent hospital's answer, unanimously affirmed, without costs.
Stanley F. Meltzer, for plaintiffs-appellants.
Before: Nardelli, J.P., Williams, Tom, Friedman, JJ.
The motion to strike was properly denied since it was not established that defendant hospital's failure to produce plaintiff's complete original hospital record was willful and contumacious (see, Siegman v. Rosen, 270 A.D.2d 14, 15). Defendant's position is that the record was already lost before plaintiff had first demanded it, surmising that it was inadvertently destroyed when microfiched. The careless loss of a record is not willful (see, Nabozny v. Capeletti, 267 A.D.2d 623, 626). As the IAS court indicated, the circumstances, which include defendant's production of an admittedly incomplete and allegedly altered copy of the record, warrant that the action proceed to trial, where the jury, under appropriate instructions relating to adverse inferences, can weigh the credibility of defendant's explanations for destroying the original record and producing an incomplete and allegedly altered copy. Nor should defendant's answer be stricken on the basis of the common-law doctrine of spoilation of evidence since it does not appear that plaintiff will be unable to prove his case without the items of information missing from the copy of the record that defendant provided, or that defendant has otherwise gained an unfair advantage as a result of the missing information (see, Sage Realty Corp. v. Proskauer Rose, 275 A.D.2d 11, 17-18; cf., Kirkland v. New York City Hous. Auth., 236 A.D.2d 170).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.