Richardson v. Garely
Richardson v. Garely
223 A.D.3d 544 (N.Y. App. Div. 2024)
January 18, 2024
Summary
The plaintiff requested spoliation sanctions against a defendant in a medical malpractice lawsuit for missing documents in her medical records. The Supreme Court granted the motion, but the Appellate Division reversed the decision, finding that the defendant had substantially complied with discovery demands and there was no evidence of deliberate destruction. The missing documents were also deemed irrelevant to the case.
Remy RICHARDSON, Plaintiff–Respondent,
v.
Alan GARELY, M.D., Defendant–Appellant,
South Nassau Communities Hospital, et al., Defendants
v.
Alan GARELY, M.D., Defendant–Appellant,
South Nassau Communities Hospital, et al., Defendants
1465, Index No. 805308/17, Case No. 2022–04692
Supreme Court, Appellate Division, First Department, New York
Entered: January 18, 2024
Counsel
Rawle & Henderson, LLP, New York (Michael H. Zhu of counsel), for appellant.Merson Law, PLLC, New York (Giovanna Mabile of counsel), for respondent.
Panel members:
Kennedy, Tanya R.,
Mendez Olivero, Manuel J.,
Rodriguez III, Julio,
Michael, Marsha D.
Opinion
*1 Order, Supreme Court, New York County (Erika M. Edwards, J.), entered on or about September 28, 2022, which, to the extent appealed from, granted plaintiff's motion for spoliation sanctions against defendant Alan Garely, M.D. to the extent of imposing an adverse inference charge at trial, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, and the motion denied.
Supreme Court improvidently exercised its discretion in imposing spoliation sanctions against Dr. Garely, as the circumstances presented do not warrant sanctions (see Hernandez v. Pace El. Inc., 69 A.D.3d 493, 494, 894 N.Y.S.2d 382 [1st Dept. 2010]). Defendant The Mount Sinai Hospital, Dr. Garely's employer, produced a certified copy of plaintiff's medical records, and Dr. Garely later substantially complied with plaintiff's discovery demands by producing several additional documents that plaintiff claimed were missing from the certified copy of the records (see Bach v. City of New York, 33 A.D.3d 544, 545, 827 N.Y.S.2d 2 [1st Dept. 2006]). The record does not demonstrate that Dr. Garely refused to obey any disclosure orders, willfully or otherwise, or that he deliberately destroyed the missing documents. Moreover, the allegedly missing documents consist of a typed note recounting an office visit, for which plaintiff has Dr. Garely's corresponding handwritten note, as well as a bladder scan image, for which plaintiff has the corresponding report.
In light of the fact that Mount Sinai is the custodian of plaintiff's medical records, the record gives no indication that Dr. Garely failed to preserve the relevant documents after receiving notice of the impending action, or that he was responsible for the loss of the documents (see Rossi v. Doka USA, Ltd., 181 A.D.3d 523, 525–526, 121 N.Y.S.3d 41 [1st Dept. 2020]; Voom HD Holdings LLC v. Echostar Satellite L.L.C., 93 A.D.3d 33, 45, 939 N.Y.S.2d 321 [1st Dept. 2012]). Nor is there any indication that the missing documents are crucial or even relevant to plaintiff's allegations against Dr. Garely (see Pennachio v. Costco Wholesale Corp., 119 A.D.3d 662, 665, 990 N.Y.S.2d 54 [2d Dept. 2014]).