Hoffman v United Methodist Church

Hoffman v United Methodist Church 2012 NY Slip Op 06781 Decided on October 10, 2012 Appellate Division, Second 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 October 10, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
THOMAS A. DICKERSON
ARIEL E. BELEN
ROBERT J. MILLER, JJ.
2012-00843
(Index No. 19883/05)

[*1]Kristen Hoffman, et al., respondents,

v

United Methodist Church, appellant.




Simon Lesser, P.C., New York, N.Y. (Renee Simon Lesser,
Leonard F. Lesser, and Anika L. Rappleye of counsel), for appellant.
Sacks & Sacks, LLP, New York, N.Y. (Scott N. Singer of
counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.) dated December 21, 2011, which denied its motion pursuant to CPLR 3126 to preclude the plaintiffs from offering certain evidence at trial on the ground of spoliation of evidence.

ORDERED that the order is affirmed, with costs.

In support of its motion pursuant to CPLR 3126 to impose the sanction of preclusion of certain evidence on the ground of the plaintiffs' alleged spoliation of MRI films dated November 16, 2007, the defendant failed to demonstrate that the plaintiffs were responsible for the loss of the original MRI films, and failed to demonstrate that the plaintiffs' allegedly negligent loss of a copy of the MRI films deprived the defendant of its ability to establish its defense. Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion (see Falcone v Karagiannis, 93 AD3d 632, 634; Dessources v Good Samaritan Hosp., 65 AD3d 1008, 1010; Cordero v Mirecle Cab Corp., 51 AD3d 707, 709).
ANGIOLILLO, J.P., DICKERSON, BELEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court