Arias v MSC Express Inc.

Arias v MSC Express Inc. 2016 NY Slip Op 05037 Decided on June 23, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 23, 2016
Sweeny, J.P., Renwick, Manzanet-Daniels, Webber, JJ.
1547N 304499/11

[*1] Tomas Arias, Plaintiff-Respondent,

v

MSC Express Inc., et al., Defendants-Appellants.

Shafer Glazer, LLP, New York (David A. Glazer of counsel), for appellants.

Law Offices of Nonna Shikh, Bronx (Henry Nachtman of counsel), for respondent.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered September 10, 2015, which denied defendants' motion to dismiss or strike plaintiff's back injury claims as a spoliation sanction, unanimously affirmed, with costs.

The motion court providently exercised its discretion in denying the motion, since plaintiff did not violate any order (see CPLR 3126), and did not intentionally or negligently dispose of crucial items of evidence (Baldwin v Gerard Ave., LLC, 58 AD3d 484, 485 [1st Dept 2009]). Plaintiff's refusal to appear at an independent medical examination (IME) before his back surgery did not constitute spoliation of evidence regarding the cause of his back injuries, since the parties had entered into a so-ordered stipulation expressly providing for only one IME to take place, after plaintiff's surgery. Defendants did not seek to modify the terms of the stipulation to require plaintiff to appear for an IME both before and after his surgery. We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 23, 2016

CLERK