Opinion
No. 3805N.
December 7, 2010.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 30, 2009, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion to strike defendants' answers as a sanction for spoliation, unanimously affirmed, without costs.
Daniel P. Buttafuoco Associates, PLLC, Woodbury (Ellen Buchholz of counsel), for appellant.
Ellenberg Partners, LLP, New York (Michael A. Ellenberg of counsel), for Gail Chorney, M.D., respondent.
Before: Mazzarelli, J.P., Acosta, Richter, Abdus-Salaam and Román, JJ.
The absence of the operative report did not deprive plaintiff of means for establishing a prima facie case ( see e.g. Orloski v McCarthy, 274 AD2d 633, 635-636, lv denied 95 NY2d 767; cf. Gray v Jaeger, 17 AD3d 286). Therefore, striking the answers would have constituted too drastic a remedy. The court properly granted plaintiff's alternative request for dismissal of the action.
We have considered the parties' remaining contentions and find them unavailing.