Gray v. Jaeger

Appellate Division of the Supreme Court of New York

Gray v. Jaeger

17 A.D.3d 286, 794 N.Y.S.2d 324, 2005 N.Y. App. Div. LEXIS 4498

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 28, 2005

StatusPublished

Cited by7 cases

This text of 17 A.D.3d 286 (Gray v. Jaeger) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gray v. Jaeger, 17 A.D.3d 286, 794 N.Y.S.2d 324, 2005 N.Y. App. Div. LEXIS 4498 (N.Y. Ct. App. 2005).

Pincite

Opinion

Order, Supreme Court, Bronx County (Nelson Roman, J.), entered November 9, 2004, which, to the extent appealed from [287]*287as limited by the briefs, granted plaintiffs motion to strike the answer only to the extent of allowing an adverse inference with respect to defendant’s failure to produce her medical records, unanimously modified, on the law and the facts, to the extent of striking the answer, and otherwise affirmed, with costs in favor of plaintiff, payable by defendant.

Although defendant’s conduct in failing to maintain plaintiffs medical records was not necessarily contumacious, it was clearly negligent. Defendant breached his ethical and statutory duty to retain plaintiffs medical records for at least six years (Education Law § 6530 [3]; 8 NYCRR 29.2 [a] [3]). Since this failure deprived plaintiff of any means of establishing a prima facie case, the striking of defendant’s answer is the appropriate remedy (Herrera v Matlin, 303 AD2d 198 [2003]; see also Cabasso v Goldberg, 288 AD2d 116 [2001]). Concur—Buckley, P.J., Sullivan, Ellerin, Williams and Catterson, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, Bronx County (Nelson Roman, J.), entered November 9, 2004, which, to the extent appealed from [287]*287as limited by the briefs, granted plaintiffs motion to strike the answer only to the extent of allowing an adverse inference with respect to defendant’s failure to produce her medical records, unanimously modified, on the law and the facts, to the extent of striking the answer, and otherwise affirmed, with costs in favor of plaintiff, payable by defendant.

Although defendant’s conduct in failing to maintain plaintiffs medical records was not necessarily contumacious, it was clearly negligent. Defendant breached his ethical and statutory duty to retain plaintiffs medical records for at least six years (Education Law § 6530 [3]; 8 NYCRR 29.2 [a] [3]). Since this failure deprived plaintiff of any means of establishing a prima facie case, the striking of defendant’s answer is the appropriate remedy (Herrera v Matlin, 303 AD2d 198 [2003]; see also Cabasso v Goldberg, 288 AD2d 116 [2001]). Concur—Buckley, P.J., Sullivan, Ellerin, Williams and Catterson, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

17 A.D.3d 286, 794 N.Y.S.2d 324, 2005 N.Y. App. Div. LEXIS 4498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-jaeger-nyappdiv-2005.

Opinion

Related

Cite This Page — Counsel Stack