Gray v. Jaeger

Order, Supreme Court, Bronx County (Nelson Roman, J.), entered November 9, 2004, which, to the extent appealed from as limited by the briefs, granted plaintiffs motion to strike the answer only to the extent of allowing an adverse inference with respect to defendant’s failure to produce her medical records, unanimously modified, on the law and the facts, to the extent of striking the answer, and otherwise affirmed, with costs in favor of plaintiff, payable by defendant.

Although defendant’s conduct in failing to maintain plaintiffs medical records was not necessarily contumacious, it was clearly negligent. Defendant breached his ethical and statutory duty to retain plaintiffs medical records for at least six years (Education Law § 6530 [3]; 8 NYCRR 29.2 [a] [3]). Since this failure deprived plaintiff of any means of establishing a prima facie case, the striking of defendant’s answer is the appropriate remedy (Herrera v Matlin, 303 AD2d 198 [2003]; see also Cabasso v Goldberg, 288 AD2d 116 [2001]). Concur—Buckley, P.J., Sullivan, Ellerin, Williams and Catterson, JJ.