Majority
p. 584Tomas Arias, Respondent, v MSC Express Inc. et al., Appellants. [33 NYS3d 695]
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 AD3d 484 , 485 [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
p. 585
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.
Concur — Sweeny, J.P., Renwick, Manzanet-Daniels and Webber, JJ.
Cases cited
- Baldwin v. Gerard Avenue, LLC 58 AD3d 484 at 485 p. 584