Bruno v. Willets Point Contracting Corp.

—In an action to recover damages for personal injuries, the defendants William Cheek Trucking and Charles W. Allison appeal from an order of the Supreme Court, Kings County (Irving Aronin, J.), dated October 12, 1993, which denied their motion to preclude the plaintiff from offering any evidence at trial with regard to the results of a CAT scan that was taken at Richmond Memorial Hospital and any findings based thereon. Ordered that the order is affirmed, with costs. The Supreme Court did not err by denying the appellants’ motion to preclude the plaintiff from offering any evidence at trial relating to the CAT scan films that were destroyed by Richmond Memorial Hospital (hereinafter the hospital). The plaintiff provided the appellants with an authorization for the release of hospital records in August 1988. The appellants apparently received the records without the CAT scan films. They did not seek to obtain the films until several years later, by which time the hospital had purged the films from its records. Since the ultimate unavailability of the films was not due to any willful failure on the part of the plaintiff, the sanction of preclusion is not warranted (Goens v Vogelstein, 146 AD2d 606). The appellants’ remaining contention is without merit. Sullivan, J. P., Rosenblatt, Altman, Hart and Friedmann, JJ., concur.