Opinion
06-23-2016
Tomas ARIAS, Plaintiff–Respondent, v. MSC EXPRESS INC., et al., Defendants–Appellants.
Shafer Glazer, LLP, New York (David A. Glazer of counsel), for appellants. Law Offices of Nonna Shikh, Bronx (Henry Nachtman of counsel), for respondent.
Shafer Glazer, LLP, New York (David A. Glazer of counsel), for appellants.
Law Offices of Nonna Shikh, Bronx (Henry Nachtman of counsel), for respondent.
Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered September 10, 2015, which denied defendants' motion to dismiss or strike plaintiff's back injury claims as a spoliation sanction, unanimously affirmed, with costs.
The motion court providently exercised its discretion in denying the motion, since plaintiff did not violate any order (see CPLR 3126 ), and did not intentionally or negligently dispose of crucial items of evidence (Baldwin v. Gerard Ave., LLC, 58 A.D.3d 484, 485, 871 N.Y.S.2d 121 [1st Dept.2009] ). Plaintiff's refusal to appear at an independent medical examination (IME) before his back surgery did not constitute spoliation of evidence regarding the cause of his back injuries, since the parties had entered into a so-ordered stipulation expressly providing for only one IME to take place, after plaintiff's surgery. Defendants did not seek to modify the terms of the stipulation to require plaintiff to appear for an IME both before and after his surgery. We have considered defendants' remaining arguments and find them unavailing.
SWEENY, J.P., RENWICK, MANZANET–DANIELS, WEBBER, JJ., concur.