Falcone v. Karagiannis

• Decision Date: 06 March 2012
• Citation: 93 A.D.3d 632,939 N.Y.S.2d 561,2012 N.Y. Slip Op. 01653
• Parties: Lisa FALCONE, etc., respondent-appellant, v. George KARAGIANNIS, etc., et al., appellants-respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01653

93 A.D.3d 632

939 N.Y.S.2d 561

Lisa FALCONE, etc., respondent-appellant,

v.George KARAGIANNIS, etc., et al., appellants-respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 6, 2012.

Helwig, Henderson, Ryan & Spinola, Carle Place, N.Y. (Maureen P. Blazowski of counsel), for appellants-respondents.

Debra S. Reiser, New York, N.Y., for respondent-appellant.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendants appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Palmieri, J.), entered August 18, 2010, as denied that branch of their motion which was to depose a certain nonparty witness upon an open commission pursuant to CPLR 3108, (2) stated portions of an order of the same court entered September 10, 2010, which, among other things, denied that branch of their separate motion which was to strike the complaint due to spoliation of evidence, and (3) stated portions of an order of the same court entered April 6, 2011, which, upon renewal, inter alia, adhered to the original determination in the order entered September 10, 2010, denying that branch of their separate motion which was to strike the complaint due to spoliation of evidence, and the plaintiff cross-appeals, as limited by her brief, from so much of the order entered April 6, 2011, as, upon renewal, vacated the determination in the order entered August 18, 2010, denying that branch of the defendants' motion which was to depose a certain nonparty witness upon an open commission pursuant to CPLR 3108, and thereupon granted that branch of the defendants' motion and directed her to disclose certain records and materials obtained, produced, or created by that witness.

ORDERED that the defendants' appeal from so much of the order entered August 18, 2010, as denied that branch of their motion which was to depose a certain nonparty witness upon an open commission pursuant to CPLR 3108 is dismissed, without costs or disbursements, as that portion of the order was superseded by the order entered April 6, 2011, made upon renewal; and it is further,

ORDERED that the defendants' appeal from stated portions of the order entered September 10, 2010, is dismissed, without costs or disbursements, as those portions of the order were superseded by the order entered April 6, 2011, made upon renewal; and it is further,

ORDERED that the order entered April 6, 2011, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

To support a determination of sanctions pursuant to CPLR 3126, the moving party must demonstrate that the responsible party's actions were “willful and contumacious” ( Denoyelles v. Gallagher, 40 A.D.3d 1027, 1027, 834 N.Y.S.2d 868; see Anthony v. Anthony, 24 A.D.3d 694, 807 N.Y.S.2d 394). “Similarly, under the common-law doctrine of spoliation, ‘when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading’ ” ( Denoyelles v. Gallagher, 40 A.D.3d at 1027, 834 N.Y.S.2d 868, quoting Baglio v. St. John's Queens Hosp., 303 A.D.2d 341, 342, 755 N.Y.S.2d 427; see Coleman v. Putnam Hosp. Ctr., 74 A.D.3d 1009, 1011, 903 N.Y.S.2d 502). The determination of a sanction for spoliation is within the broad discretion of the court ( see Greene v. Mullen, 70 A.D.3d 996, 893 N.Y.S.2d 895; Gotto...