You are here: / / SURGERY, EVEN AFTER A DEFENSE REQUEST FOR A PRE-SURGERY PHYSICAL EXAM,...
, , ,

SURGERY, EVEN AFTER A DEFENSE REQUEST FOR A PRE-SURGERY PHYSICAL EXAM, IS NOT SPOLIATION OF EVIDENCE AND DOES NOT WARRANT SANCTIONS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, determined plaintiff’s surgery, even after a defense request for a pre-surgical physical exam, is not spoliation of evidence and does not trigger sanctions. In this traffic accident case, plaintiff underwent surgery before the action was commenced and again after a defense demand for a pre-surgery medical exam:

… [T]he First Department has recently rejected the proposition that a spoliation analysis can apply in such a situation. In Gilliam v Uni Holdings, LLC (201 AD3d 83), the First Department held “that the condition of one’s body is not the type of evidence that is subject to a spoliation analysis” … . After noting that “[s]poliation analysis has long been applied to a party’s destruction of inanimate evidence,” the First Department concluded that the “state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an ‘obligation,’ to preserve his or her body in an injured state so that a defendant may conduct [a medical examination], is antithetical to our belief in personal liberty and control over our own bodies” … . * * *

We agree with the First Department’s conclusion in this regard, for the reasons stated in its opinion. It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff’s body in a presurgical state. Under these circumstances, the plaintiff has not “refuse[d] to obey an order for disclosure or wilfully fail[ed] to disclose information which . . . ought to have been disclosed” (CPLR 3126). Fadeau v Corona Indus. Corp., 2023 NY Slip Op 03453, Second Dept 6-28-23

Practice Point: Here in this traffic accident case, plaintiff underwent surgery before the action was commenced and again after the defense demand for a pre-surgery physical exam. Joining the First Department, the Second Department held that surgery is not spoliation of evidence and does not trigger sanctions.

 

You might also like
PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT CONCLUSORY OR SPECULATIVE; THE AFFIDAVIT DEMONSTRATED THE EXPERT WAS QUALIFIED TO RENDER AN OPINION ON PROPER WOUND CARE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT PLED GUILTY TO POSSESSION OF A GRAVITY KNIFE WHICH WAS DE-CRIMINALIZED SHORTLY THEREAFTER; CONVICTION REVERSED IN THE INTEREST OF JUSTICE WITH THE PEOPLE’S CONSENT (SECOND DEPT).
THE NYC WATER BOARD DETERMINED PETITIONER WAS NOT ENTITLED TO A RETROACTIVE REDUCTION IN SEWER CHARGES BUT WAS NOT NAMED AS A RESPONDENT IN PETITIONER’S ARTICLE 78 ACTION; THE WATER BOARD MUST BE ADDED AS A NECESSARY PARTY (SECOND DEPT).
PARTY AND ITS ATTORNEYS ORDERED TO PAY SANCTIONS FOR FAILING TO INFORM THE APPELLATE COURT OF THE SETTLEMENT OF ACTIONS ON APPEAL (SECOND DEPT).
TEN POINTS SHOULD NOT HAVE BEEN ASSESSED FOR AN OLD MINOR OFFENSE IN PRISON, DEFENDANT’S RISK ASSESSMENT REDUCED TO LEVEL ONE (SECOND DEPT).
PLAINTIFF’S STEPPING ON AN UNSECURED PLANK HE HAD JUST PLACED, RATHER THAN AN AVAILABLE SECURED PLANK, CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS FALL, DEFENDANTS’ PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).
Jury’s Conclusion the School Negligently Supervised Students But the Negligent Supervision Was Not the Proximate Cause of Plaintiff’s Injuries Was Supported by the Evidence/Inconsistent Verdict Issue Not Preserved Because Not Raised Before the Jury Was Discharged
Action Abandoned, Should Not Have Been Restored

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

UNDER THE 2022 FORECLOSURE ABUSE PREVENTION ACT BANKS CAN NO LONGER STOP THE... IN THIS SIDEWALK SLIP AND FALL CASE, THE DEFENDANT PROPERTY OWNERS HAD DIED...