Diaz v. Rose

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered February 1, 2006, which granted plaintiffs motion to strike defendant Medical Center’s answer, unanimously reversed, on the law, without costs, the motion denied and the answer reinstated.

Although the Medical Center’s failure to retain the object removed from plaintiffs decedent’s shoulder will render it more difficult to establish whether that object was one of the suture anchors used to repair the patient’s rotator cuff in March 2001, or was instead a drill tip improperly left there during the surgery, the relief granted by the motion court was nevertheless more punitive than was warranted under the circumstances (see Northway Eng’g v Felix Indus., 77 NY2d 332, 337 [1991]). The Medical Center’s failure was not established to have resulted from the intentional spoliation of evidence such as would warrant the sanction of striking its answer. Concur—Tom, J.P., Saxe, Marlow, McGuire and Malone, JJ.