Hannah v. Chorney

79 A.D.3d 468, 911 N.Y.S.2d 622

Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 30, 2009, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion to strike defendants’ answers as a sanction for spoliation, unanimously affirmed, without costs.

The absence of the operative report did not deprive plaintiff of means for establishing a prima facie case (see e.g. Orloski v McCarthy, 274 AD2d 633, 635-636 [2000], Iv denied 95 NY2d 767 [2000]; cf. Gray v Jaeger, 17 AD3d 286 [2005]). Therefore, striking the answers would have constituted too drastic a remedy. The court properly granted plaintiffs alternative request for dismissal of the action.

We have considered the parties’ remaining contentions and find them unavailing. Concur — Mazzarelli, J.E, Acosta, Richter, Abdus-Salaam and Román, JJ.