Schantz v. Fish

Appellate Division of the Supreme Court of New York

Schantz v. Fish

79 A.D.3d 481, 911 N.Y.S.2d 625

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

DecidedDecember 7, 2010

StatusPublished

Cited by8 cases

This text of 79 A.D.3d 481 (Schantz v. Fish) 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

Schantz v. Fish, 79 A.D.3d 481, 911 N.Y.S.2d 625 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, New York County (Joan B. Carey, J.), entered December 23, 2009, which granted plaintiffs motion to sanction defendant for the spoliation of evidence to the extent of ruling that a negative inference charge would be given to the jury, and denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly imposed a lesser sanction than striking defendant’s answer, based on its finding that the spoliation of plaintiffs medical records does not completely deprive plaintiff of the means of establishing a prima facie case (compare Gray v Jaeger, 17 AD3d 286 [2005]; Herrera v Matlin, 303 AD2d 198 [2003]).

In opposition to defendant’s motion for summary judgment, plaintiff submitted medical records and properly supported experts’ opinions in conflict with the opinions of defendants’ experts, thereby raising issues of fact whether defendant departed from good and accepted medical malpractice in his treatment of plaintiff. Concur — Tom, J.P., Andrias, Sweeny, DeGrasse and Román, JJ. [Prior Case History: 2009 NY Slip Op 33040(11).]

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Order, Supreme Court, New York County (Joan B. Carey, J.), entered December 23, 2009, which granted plaintiffs motion to sanction defendant for the spoliation of evidence to the extent of ruling that a negative inference charge would be given to the jury, and denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly imposed a lesser sanction than striking defendant’s answer, based on its finding that the spoliation of plaintiffs medical records does not completely deprive plaintiff of the means of establishing a prima facie case (compare Gray v Jaeger, 17 AD3d 286 [2005]; Herrera v Matlin, 303 AD2d 198 [2003]).

In opposition to defendant’s motion for summary judgment, plaintiff submitted medical records and properly supported experts’ opinions in conflict with the opinions of defendants’ experts, thereby raising issues of fact whether defendant departed from good and accepted medical malpractice in his treatment of plaintiff. Concur — Tom, J.P., Andrias, Sweeny, DeGrasse and Román, JJ. [Prior Case History: 2009 NY Slip Op 33040(11).]

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Bluebook (online)

79 A.D.3d 481, 911 N.Y.S.2d 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schantz-v-fish-nyappdiv-2010.

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