Heaney v Hospital for Special Surgery

[*1] Heaney v Hospital for Special Surgery 2009 NY Slip Op 50748(U) [23 Misc 3d 133(A)] Decided on April 20, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 20, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, J.
570160/08

Paul Heaney and Margaret Heaney, Plaintiffs-Appellants,

against

Hospital For Special Surgery, Defendant-Respondent.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), entered August 2, 2006, which denied their motion to strike defendant's answer, "declin[ed] to consider plaintiffs' arguments relating to spoliation of evidence," and granted defendant's cross motion to quash a nonparty subpoena.

Per Curiam.

Order (Anil C. Singh, J.), entered August 2, 2006, affirmed, with $10 costs.

The motion court providently exercised its discretion in granting defendant's motion to quash a subpoena and notice of deposition served by plaintiffs upon an out-of-state nonparty witness, where plaintiffs failed to show that further examination of the witness, who had already been extensively deposed by plaintiffs, was likely to be productive (see CPLR 3101[a][4]). Plaintiffs' spoliation argument, even if timely raised and properly considered, must be rejected on the merits since there was no showing that defendants destroyed the requested documents (see Squitieri v City of New York, 248 AD2d 201, 202 [1998]; Kirkland v New York City Hous. Auth., 236 AD2d 170, 173 [1997]) or that plaintiffs were unable to prove their claims without the missing documents (see Ingoglia v Barnes & Noble College Booksellers, Inc., 48 AD3d 636, 637 [2008]; Amaris v Sharp Elec. Corp., 304 AD2d 457 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 20, 2009