Schantz v Fish

Schantz v Fish 2010 NY Slip Op 09012 [79 AD3d 481] 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

Brian Schantz, Appellant-Respondent,
v
Irving Fish, M.D., Respondent-Appellant.

—[*1] Cascione, Purcigliotti & Galluzzi, P.C., New York (Thomas G. Cascione of counsel), for appellant-respondent.

Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Joan B. Carey, J.), entered December 23, 2009, which granted plaintiff's motion to sanction defendant for the spoliation of evidence to the extent of ruling that a negative inference charge would be given to the jury, and denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly imposed a lesser sanction than striking defendant's answer, based on its finding that the spoliation of plaintiff's medical records does not completely deprive plaintiff of the means of establishing a prima facie case (compare Gray v Jaeger, 17 AD3d 286 [2005]; Herrera v Matlin, 303 AD2d 198 [2003]).

In opposition to defendant's motion for summary judgment, plaintiff submitted medical records and properly supported experts' opinions in conflict with the opinions of defendants' experts, thereby raising issues of fact whether defendant departed from good and accepted medical malpractice in his treatment of plaintiff. Concur—Tom, J.P., Andrias, Sweeny, DeGrasse and RomÁn, JJ. [Prior Case History: 2009 NY Slip Op 33040(U).]