Hannah v Chorney

Hannah v Chorney 2010 NY Slip Op 09000 [79 AD3d 468] December 7, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Joshua Hannah et al., Appellants,
v
Gail Chorney, M.D., et al., Respondents.

—[*1] Daniel P. Buttafuoco & Associates, PLLC, Woodbury (Ellen Buchholz of counsel), for appellant.

Ellenberg & Partners, LLP, New York (Michael A. Ellenberg of counsel), for Gail Chorney, M.D., respondent.

Mauro Goldberg & Lilling LLP, Great Neck (Anthony F. DeStefano of counsel), for New York Presbyterian Hospital and Columbia Presbyterian Medical Center, respondents.

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.