Hannah v. Chorney

Dec 7, 2010
Versions:

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 30, 2009, which, to the extent appealed from as limited by the briefs, denied plaintiff‘s motion to strike defendants’ answers as a sanction for spoliation, unanimously affirmed, without costs.

The absence of the operative report did not deprive plaintiff of means for establishing a prima facie case (see e.g. Orloski v McCarthy, 274 AD2d 633, 635-636 [2000], lv denied 95 NY2d 767 [2000]; cf. Gray v Jaeger, 17 AD3d 286 [2005]). Therefore, striking the answers would have constituted too drastic a remedy. The court properly granted plaintiff‘s alternative request for dismissal of the action.

We have considered the parties’ remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Acosta, Richter, Abdus-Salaam and Román, JJ.