General
Joshua Hannah et al., Appellants, v. Gail Chorney, M.D., et al., Respondents
79 A.D.3d 468911 N.Y.S.2d 622·New York Supreme Court, Appellate Division·2010·NY
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Opinion
Joshua Hannah et al., Appellants, v Gail Chorney, M.D., et al., Respondents.
[911 NYS2d 622]
[MAJORITY]
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 30, 2009, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion to strike defendants’ answers as a sanction for spoliation, unanimously affirmed, without costs.
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 [2000], Iv denied 95 NY2d 767 [2000]; cf. Gray v Jaeger, 17 AD3d 286 [2005]). Therefore, striking the answers would have constituted too drastic a remedy. The court properly granted plaintiffs alternative request for dismissal of the action.
We have considered the parties’ remaining contentions and find them unavailing. Concur — Mazzarelli, J.E, Acosta, Richter, Abdus-Salaam and Román, JJ.