Supreme Court, New York County, February 27, 2024

Lewis Brisbois Bisgaard & Smith LLP (Jose Bustillos Varela of counsel) and Sullivan PC for Anchorman Construction LLC, defendant.

The Lambrou Law Firm P.C. (Lambros Lambrou of counsel) for plaintiff.

Sylvia O. Hinds-Radix, Corporation Counsel, for City of New York, defendant.

Littman PLLC (Matthew Littman of counsel) for Safeway Construction Enterprises LLC, defendant.

In June 2021, plaintiff Joyce Garrison commenced this personal injury action against [*2]defendants the City of New York, Safeway Construction Enterprises,^[FN*] Anchorman Construction LLC (the moving defendant; hereinafter Anchorman), and Barrier1 Systems, Inc., alleging that she was injured in a fall at a property owned, managed, or operated by defendants. In motion sequence 003, Anchorman moves for spoliation sanctions and/or sanctions pursuant to CPLR 3126, arguing that plaintiff ignored its "Notice to Preserve and Demand to Conduct Pre-surgery Physical Examination" when electing to have two surgeries on her injured shoulder on January 4, 2023, and November 15, 2023. Consequently, Anchorman now seeks an order either (1) dismissing plaintiff's action, or (2) precluding her from offering into evidence her alleged shoulder injuries at trial. Plaintiff opposes and cross-moves for sanctions pursuant to 22 NYCRR 130-1.1 against defendant for bringing this allegedly frivolous motion. For the following reasons, both motions are denied.

On November 16, 2021, counsel for Anchorman served its verified answer together with its demand for a bill of particulars. (NY St Cts Elec Filing [NYSCEF] Doc No. 86 at 36, demand.) On January 16, 2022, plaintiff served her verified bill of particulars, in which she alleges she suffered extensive injuries to her left shoulder, cervical spine, left hip and leg,{**83 Misc 3d at 354} and right knee. (NYSCEF Doc No. 87 at 6, bill of particulars.) Less than a week later, Anchorman served plaintiff with the notice to preserve and demand to conduct pre-surgery physical examination. (NYSCEF Doc No. 88 at 2, notice to preserve.) Therein, it demanded that plaintiff "preserve her alleged injured body parts in their pre-surgery condition(s), until such time that Plaintiff has presented for a physical examination (i.e., an 'IME') conducted by a physician designated by Defendant's counsel, absent any emergency need for surgery, in accordance with applicable case law." (Id. at 1.) As applicable case law, the notice to preserve cites Martinez v Nelson (64 Misc 3d 225 [Sup Ct, Bronx County 2019]), Mangione v Jacobs (37 Misc 3d 711 [Sup Ct, Queens County 2012]), and Kang v Perri (2021 WL 5507987, 2021 US Dist LEXIS 162769 [ED NY, Aug. 25, 2021, 20-cv-00746 (MKB)(PK)]). On June 1, 2022, plaintiff responded to the notice to preserve and objected to the demand as it "is in direct contravention of controlling appellate authority. See, Gilliam v. Uni Holdings, 201 AD3d 83, 85-86 (1st Dept. 2021)." (NYSCEF Doc No. 88 at 8, response to notice.) Thereafter, plaintiff served two supplemental bills of particulars (see NYSCEF Doc Nos. 91, 92) wherein she revealed that she had undergone two left shoulder surgeries on January 4 and November 15, 2023, without first having submitted to an IME.

On this motion, Anchorman argues spoliation sanctions are appropriate since (1) plaintiff was under an obligation to preserve evidence of her shoulder injury, in the form of undergoing an IME, (2) by electing surgery without an IME, evidence of her shoulder injury was destroyed with a culpable state of mind, and (3) the evidence of her shoulder injury was material and relevant to Anchorman's defense. In opposition, plaintiff contends that the holding in Gilliam v Uni Holdings, LLC (201 AD3d 83, 85-86 [1st Dept 2021]) is clear: "the condition of one's body is not the type of evidence that is subject to a spoliation analysis," meaning she was under no obligation to undergo an IME before electing surgery. While Anchorman acknowledges Gilliam's central holding, it argues that the case should not be considered dispositive. In its view, in Gilliam, the First Department confronted a narrow evidentiary problem: whether spoliation sanctions are appropriate where the plaintiff undergoes a medical procedure within a short [*3]window of time after being served a preservation letter, thus forcing them to choose between undergoing surgery (and being{**83 Misc 3d at 355} sanctioned for failing to submit to an IME) and holding off on a medically necessary procedure. (See NYSCEF Doc No. 84 ¶¶ 35-44, Anchorman mem of law.) Given that Anchorman served its notice to preserve approximately one year before plaintiff's first planned surgery and over two years prior to her second, Anchorman argues that the rationale underpinning Gilliam is not present here and thus, the court retains the authority to impose spoliation sanctions.

Even assuming that Anchorman is correct that (1) the relatively long period of time between when plaintiff received defendant's notice to preserve and her elective surgery does not pose the same short-term evidentiary issues that (2) the Gilliam court confronted, there is nothing in Gilliam to support the position that the timing of the procedure affects whether a plaintiff may be exposed to a spoliation sanction. The First Department's opening paragraph explained that the present appeal "hinges on whether the condition of one's body is the kind of evidence that is subject to a spoliation analysis" (id. at 84 [emphasis added])—not, as Anchorman's position requires, under what circumstances the condition of one's body may be subject to such an analysis. The First Department then expressly held, without qualification, that "the condition of one's body is not the type of evidence that is subject to a spoliation analysis" and instructed future courts to ignore those lower decisions—like Mangione v Jacobs and Martinez v Nelson—that had come to a contradictory holding. (Id. at 85-86.) In its view, "[t]o . . . hold [the opposite] would improperly subject a plaintiff's health condition to an unsuitable legal analysis." (Id. at 86.)

The First Department's rationale is similarly unambiguous: it explained that

"[t]he 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 an ME, is antithetical to our belief in personal liberty and control over our own bodies." (Id. at 86-87.)

Contrary to Anchorman's position, the above quotations—and the absence of any limiting language surrounding them—demonstrate {**83 Misc 3d at 356}that the First Department adopted a general rule, whose applicability does not depend on the relative timing of a notice to preserve and the medical procedure. Had the First Department intended to adopt a narrower rule—for example, one that applies only to cases, in Anchorman's words, "farther along in the discovery timeline," where the plaintiff's deposition had already taken place or where IME designation notices had already been served—it could have indicated as such. That it did not, in any way, qualify its rule is instructive and points, again, to the adoption of a general rule. It should be noted that the Second Department adopted the same rule in Fadeau v Corona Indus. Corp. (217 AD3d 1, 7 [2d Dept 2023]). Lastly, as in Gilliam, Anchorman has not been "prejudiced" by plaintiff's medical treatment since it may rely on plaintiff's pre-surgical and post-surgical medical records. (Id. at 87.) Accordingly, since plaintiff's body and physical injury is not the type of evidence which can be the subject of a spoliation analysis, defendant's motion for sanction thereunder is denied.

Even if it is not entitled to spoliation sanctions, Anchorman asserts that it is entitled to discovery sanctions under CPLR 3126. Anchorman asserts that under CPLR 3121 (a) it was entitled to conduct an IME prior to plaintiff's surgery since its notice to preserve states, in pertinent part, that Anchorman

"demands that Plaintiff . . . preserve her alleged injured body parts in their pre-surgery condition(s), until such time that Plaintiff has presented for a physical [*4]examination . . .

"In particular, the demand to preserve and demand to conduct a pre-surgery IME apply to any left shoulder, cervical spine, left hip/leg, and right knee, surgery or procedure." (NYSCEF Doc No. 88.)

That plaintiff failed to inform it of her surgeries and, thus, did not sit for an IME, in Anchorman's view, defeated the language of CPLR 3121 providing parties the right to conduct an IME "at any point 'after [the] commencement of an action.' " (See NYSCEF Doc No. 84 ¶¶ 57-60.) However, while Anchorman of course had a right to demand plaintiff submit to an IME at a time of its choosing, it did nothing to effectuate that right. The record reveals that it never scheduled an IME with a designated physician and plaintiff did not ignore any order to appear at one. That this might have been a choice made in good faith in order to save plaintiff from burdensome and pointless IMEs (see id. ¶ 57) is immaterial: plaintiff objected to the notice to{**83 Misc 3d at 357} preserve, on exactly the grounds asserted herein, at least six months prior to electing surgery and was under no obligation to inform Anchorman of the treatments she sought. Still, at any point prior to (or even after) the first surgery, Anchorman could have served an IME designation notice to ensure that it preserved any evidence relevant to its defense. To this point, since plaintiff has still not been deposed, the purpose of CPLR 3121 has not been frustrated as Anchorman can still require plaintiff to submit to an IME. Accordingly, the court finds discovery sanctions, much less dismissing the entire complaint or precluding evidence, inappropriate.

Plaintiff's cross-motion for sanctions pursuant to 22 NYCRR 130-1.1 is also denied. While the court found in her favor under Gilliam, Anchorman did not misrepresent the law and the facts but rather put forth a well-reasoned, good-faith argument for why Gilliam is distinguishable from the instant dispute and why a different result should hold. Accordingly, Anchorman's motion cannot be deemed frivolous under that statute.

Accordingly, for the following reasons, it is hereby ordered that defendant Anchorman Construction LLC's motion for spoliation and discovery sanction under CPLR 3126 is denied; and it is further ordered that plaintiff Joyce Garrison's cross-motion for sanctions under 22 NYCRR 130-1.1 is denied.