                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   518197
________________________________

KATHY WEISS et al.,
   Individually and as Parents
   and Guardians of JONAH
   WEISS, an Infant,
                    Appellants,             MEMORANDUM AND ORDER
      v

BELLEVUE MATERNITY HOSPITAL,
                    Respondent,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   September 11, 2014

Before:   Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.

                             __________


      Feeney, Centi & Mackey, Albany (L. Michael Mackey of
counsel) and Rosenblum, Ronan, Kessler & Sarachan, Albany
(Michael W. Kessler of counsel), for appellants.

      Petrone & Petrone, PC, Williamsville (James H. Cosgriff III
of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from that part of an order of the Supreme Court
(Clark, J.), entered August 28, 2013 in Schenectady County, which
denied plaintiffs' motion to strike defendant Bellevue Maternity
Hospital's answer.

      In January 2000, plaintiff Kathy Weiss (hereinafter the
mother) gave birth to a son at defendant Bellevue Maternity
Hospital. Almost 10 years later, plaintiffs commenced this
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medical malpractice action alleging that defendants failed to
properly manage the mother's labor and failed to timely deliver
the child by cesarean section, thereby causing him to suffer a
profound hypoxic brain injury that has rendered him totally and
permanently disabled. During the course of discovery, plaintiffs
learned that the mother's labor and delivery records had been
destroyed in 2008 pursuant to the records retention policy of
Bellevue's successor, Ellis Hospital. Plaintiffs thereafter
moved to strike Bellevue's answer on the grounds of spoliation of
evidence, as well as its failure to fully comply with court
orders concerning disclosure. Supreme Court denied plaintiffs'
motion, and this appeal ensued.

      Supreme Court possesses broad discretion to determine what
sanction, if any, to impose for the spoliation of evidence, and
its determination will remain undisturbed absent a clear abuse of
that discretion (see State of New York v 158th St. & Riverside
Dr. Hous. Co., Inc., 100 AD3d 1293, 1295 [2012], lv denied 20
NY3d 858 [2013]; Merrill v Elmira Hgts. Cent. School Dist., 77
AD3d 1165, 1166 [2010]). Mindful that striking a pleading is a
drastic penalty to impose absent willful or contumacious conduct,
"[c]ourts will look to the extent that the spoliation of evidence
may prejudice a party and whether a dismissal will be necessary
as a matter of elementary fairness" (Miller v Weyerhaeuser Co., 3
AD3d 627, 628 [2004], lv dismissed 3 NY3d 701 [2004], appeal
dismissed 5 NY3d 822 [2005] [internal quotation marks and
citations omitted]; see Merrill v Elmira Hgts. Cent. School
Dist., 77 AD3d at 1167; Puccia v Farley, 261 AD2d 83, 85 [1999]).
"In the absence of pending litigation or notice of a specific
claim, a defendant should not be sanctioned for discarding items
in good faith and pursuant to its normal business practices"
(Steuhl v Home Therapy Equip., Inc., 23 AD3d 825, 826-827 [2005]
[internal quotation marks and citation omitted]; accord Dobson v
Gioia, 39 AD3d 995, 998 [2007]; see Lawrence Ins. Group v KPMG
Peat Marwick, 5 AD3d 918, 920 [2004]).

      Here, the operations manager of Ellis Hospital's Health
Information Services Department explained that both Bellevue and
Ellis had consistent policies of retaining adult records for six
years following discharge and infant records until the child
turned 21, as they were required to do by law (see 10 NYCRR
                              -3-                518197

405.10 [a] [4]). While acknowledging that a mother's labor and
delivery records may contain important information relevant to
the infant's health, this individual explained that labor and
delivery records are part of the mother's records and are not
separated from other adult medical records prior to their
destruction. As Supreme Court found, there is no indication in
the record that Bellevue or Ellis acted maliciously or in bad
faith in discarding the records, which they did in the regular
course of business in accordance with hospital policy and a
reasonable reading of the regulatory requirements (see Dobson v
Gioia, 39 AD3d at 998; Steuhl v Home Therapy Equip., Inc., 23
AD3d at 826-827; Hemingway v New York City Health & Hosps. Corp.,
13 AD3d 484, 484-485 [2004]).

      Nor have plaintiffs established that the unavailability of
the labor and delivery records "'fatally compromised [their]
ability' to prosecute this action" (Gotto v Eusebe-Carter, 69
AD3d 566, 568 [2010], quoting Utica Mut. Ins. Co. v Berkoski Oil
Co., 58 AD3d 717, 718 [2009]). Plaintiffs have access to other
pertinent records – including fetal heart rate monitoring strips
and a biophysical profile report containing critical information
regarding the child's risk factors during the labor and delivery
– and have the opportunity to depose, among others, the mother's
obstetrician, defendant Clifford Elson, and hospital personnel
regarding the events that transpired (see Johnson v Ayyub, 115
AD3d 1191, 1192-1193 [2014]; Madkins v State of New York, 82 AD3d
1174, 1174 [2011]; Gotto v Eusebe-Carter, 69 AD3d at 568; compare
Baglio v St. John's Queens Hosp., 303 AD2d 341, 342-343 [2003]).
Under all of the circumstances, we cannot say that Supreme Court
abused its discretion in declining to strike Bellevue's answer
due to the unavailability of the mother's labor and delivery
records.1



    1
        Supreme Court did not err in declining to consider
arguments contained in the reply affidavits submitted by
plaintiffs on the motion, as these submissions were an improper
vehicle for raising new arguments (see CPLR 3211 [e]; Matter of
Albany County Dept. of Social Servs. v Rossi, 62 AD3d 1049, 1050
[2009]; Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]).
                              -4-                  518197

      Nor are we persuaded that Bellevue's failure to fully
comply with prior disclosure orders warrants such a drastic
penalty. Despite some initial inconsistent responses, Bellevue
ultimately reported that the mother's labor and delivery records
had been discarded in 2008 pursuant to hospital policy and that,
although attempts had been made to locate a copy of Bellevue's
record retention/destruction policy prior to its merger with
Ellis, no such document had been found. Although, at the time of
the motion, Bellevue had yet to provide a list of labor and
delivery nurses who were on staff for the child's birth and
offered no explanation as to why some, but not all, of the
mother's hospital chart was in counsel's possession, Supreme
Court chose to provide Bellevue one last opportunity to comply
with the disclosure orders and warned that the failure to do so
within 30 days would result in the imposition of sanctions.
Supreme Court's resolution of the issue fell within its broad
discretion, and we find no reason to disturb it (see Bedell v
Rocking Horse Ranch Corp., 94 AD3d 1389, 1391 [2012]; Kauffman v
Triborough Bridge & Tunnel Auth., 295 AD2d 171, 171-172 [2002]).

     Lahtinen, Stein, Garry and Devine, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
