FAVISH v. TEPLER

ORDERED that the order is reversed, with one bill of costs payable by the respondents appearing separately and filing separate briefs, those branches of the motions which were to stay the trial are denied, and those branches of the motions which were to dismiss the complaint are remitted to the Supreme Court, Kings County, for determination of a less severe sanction for the loss of the original fluoroscopic films.

A sanction for spoliation of evidence may be imposed under appropriate circumstances where a party negligently loses or destroys evidence (see DiDomenico v. C S Aeromatik Supplies, 252 A.D.2d 41, 53; Kirkland v. New York City Hous. Auth., 236 A.D.2d 170; Mudge, Rose, Guthrie, Alexander Ferdon v. Penguin Air Conditioning Corp., 221 A.D.2d 243). While reluctant to dismiss a pleading absent willful or contumacious conduct, courts will consider the extent of prejudice to a party and whether dismissal is necessary as a "matter of elementary fairness" (Puccia v. Farley, 261 A.D.2d 83, 85; Kirkland v. New York City Hous. Auth., 236 A.D.2d at 175).

The Supreme Court improvidently exercised its discretion in conditionally dismissing the plaintiffs' complaint as a sanction for the loss of certain original fluoroscopic films taken of the infant plaintiff's injured wrist. There is no evidence that the plaintiffs acted willfully, contumaciously, or in bad faith. The record does not demonstrate that the loss of the films will fatally compromise the defense (compare Kirkland v. New York City Hous. Auth., supra at 176) or leave the defendants without the means to defend the action (compare DiDomenico v. C S Aeromatik Supplies, 252 A.D.2d at 53). Under the circumstances, the court should have considered a less severe sanction (see Vaughn v. City of New York, 201 A.D.2d 556).

To the extent the plaintiffs contend that the court erred in concluding that they were responsible for the loss of the original films, that issue was determined in a prior order from which no appeal was taken. Therefore, it is not properly before us on this appeal (see Vlassis v. Corines, 247 A.D.2d 609; Damen v. North Shore Univ. Hosp., 234 A.D.2d 255).

The plaintiffs' remaining contention is unpreserved for appellate review.

SANTUCCI, J.P., ALTMAN, S. MILLER and McGINITY, JJ., concur.