Opinion
No. 438 CA 23-00402
07-26-2024
JOYCE STORM, AS POWER OF ATTORNEY FOR PAUL JANKOWSKI, PLAINTIFF-RESPONDENT, v. KALEIDA HEALTH, DOING BUSINESS AS BUFFALO GENERAL HOSPITAL, DEFENDANT-RESPONDENT, WILLIAMSVILLE SUBURBAN, LLC, LEGACY HEALTH CARE, LLC, GOLDEN LIVING CENTERS, LLC, SAFIRE CARE, LLC, SAFIRE REHABILITATION OF AMHERST, LLC, W. RICHARD ZACHER, LAURA OTTERBEIN, WENDY SCHMIDT, SOLOMON ABRAMCZYK, JUDY LANDA, ARYEH RICHARD PLATSCHEK, ROBERT SCHUCK AND MOSHE STEINBERG, DEFENDANTS-APPELLANTS.
CAITLIN ROBIN & ASSOCIATES, PLLC, NEW YORK CITY (CAITLIN A. ROBIN OF COUNSEL), FOR DEFENDANTS-APPELLANTS. ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (KAYLA A. HUGHES OF COUNSEL), FOR DEFENDANT-RESPONDENT.
CAITLIN ROBIN & ASSOCIATES, PLLC, NEW YORK CITY (CAITLIN A. ROBIN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (KAYLA A. HUGHES OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: LINDLEY, J.P., OGDEN, GREENWOOD, AND KEANE, JJ.
Appeal from an order of the Supreme Court, Erie County (John B. Licata, J.), entered February 2, 2023. The order granted the motion of defendant Kaleida Health, doing business as Buffalo General Hospital, to sanction defendants Williamsville Suburban, LLC, Legacy Health Care, LLC, Golden Living Centers, LLC, Safire Care, LLC, Safire Rehabilitation of Amherst, LLC, W. Richard Zacher, Laura Otterbein, Wendy Schmidt, Solomon Abramczyk, Judy Landa, Aryeh Richard Platschek, Robert Schuck and Moshe Steinberg, with an adverse inference charge for spoliation of evidence.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced two actions that subsequently were consolidated, seeking damages for injuries sustained by Paul Jankowski. During the course of discovery, defendant Kaleida Health, doing business as Buffalo General Hospital (Kaleida), sought Jankowski's records from Sheridan Manor, a nonparty facility where Jankowski resided and received care during the relevant time period of his injuries. When counsel for defendants-appellants (Safire Care defendants) informed Kaleida that the records had been destroyed, Kaleida moved for an order pursuant to CPLR 3126 sanctioning the Safire Care defendants by directing that an adverse inference charge be used against them at trial. Supreme Court granted the motion, and the Safire Care defendants appeal. We affirm.
"The party seeking sanctions for spoliation of evidence has the burden of showing 'that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense'" (Page v Niagara Falls Mem. Med. Ctr., 167 A.D.3d 1428, 1430 [4th Dept 2018], quoting Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 N.Y.3d 543, 547 [2015]). "Spoliation sanctions may be appropriate even if the destruction occurred through negligence rather than willfulness" (Enstrom v Garden Place Hotel, 27 A.D.3d 1084, 1086 [4th Dept 2006] [internal quotation marks omitted]; see Ahroner v Israel Discount Bank of N.Y., 79 A.D.3d 481, 482 [1st Dept 2010]). Spoliation sanctions may be imposed upon a party even though that party did not own or control the evidence that was destroyed, so long as the party "had an opportunity to safeguard [the] evidence but failed to do so" (Ortega v City of New York, 9 N.Y.3d 69, 76 n 2 [2007]; see Standard Fire Ins. Co. v Federal Pac. Elec. Co., 14 A.D.3d 213, 219-220 [1st Dept 2004]; Amaris v Sharp Elecs. Corp., 304 A.D.2d 457, 457-458 [1st Dept 2003], lv denied 1 N.Y.3d 507 [2004]). "The court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence" (Iannucci v Rose, 8 A.D.3d 437, 438 [2d Dept 2004]; see Mahiques v County of Niagara, 137 A.D.3d 1649, 1650 [4th Dept 2016]).
We conclude that Kaleida met its burden on the motion and that the court did not abuse its discretion in directing that an adverse inference against the Safire Care defendants be charged to the jury at trial. Contrary to the contention raised by the Safire Care defendants, they had the opportunity to safeguard Jankowski's records from Sheridan Manor at the commencement of the suit against them in August 2016 (see Ortega, 9 N.Y.3d at 76 n 2; Amaris, 304 A.D.2d at 457-458). Under the circumstances of this case, an adverse inference charge against the Safire Care defendants is an appropriate sanction for the negligent spoliation of the evidence (see Enstrom, 27 A.D.3d at 1087).