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Failure to Perform Autopsy Not Spoliation (NY)

April 23, 2019

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<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/04/Fishon-v-Richmond-Univ-Med-Ctr-1.pdf">Fishon-v-Richmond-Univ-Med-Ctr</a>, </em>plaintiff, as administrator of the decedent's estate, commenced an action to recover damages for medical malpractice, wrongful death, and violation of the common-law right of sepulcher following the decedent's death.  Sepulcher is the right to choose and control the burial, cremation, or other final disposition of a human body.</p>
<p style="text-align: justify;">During jury selection, the plaintiff made an oral application to the Court requesting that the Court strike defendant's answer and for judgment as a matter of law on the issue of liability on the grounds that the defendant allegedly destroyed evidence and failed to perform an autopsy on the decedent. In opposition, the defendant argued, among other things, that the Supreme Court had previously denied that branch of a prior motion by the plaintiff which was to strike the defendant's answer based on the defendant's alleged spoliation of evidence. In the order appealed from, the court granted the plaintiff's oral application, in effect, to strike the defendant's answer and for judgment as a matter of law on the issue of liability. The defendant appealed. The Appellate court granted permission for the appeal since the orders were granted on an oral application and only an order resulting from a motion on notice is appealable as of right.</p>
<p style="text-align: justify;">The Appellate Division, Second Department, ultimately reversed the lower court’s decision on the grounds that the lower court violated the doctrine of law of the case (i.e. where rulings made by a trial court and not challenged on appeal become the law of the case) in that it disregarded the prior order denying that branch of plaintiff’s earlier motion seeking to strike the defendant’s answer based upon the same evidentiary issues.</p>
<span>Thanks to Margaret Adamczak for her contribution to this post.  Please email  <a href="mailto:vterrasi@wcmlaw.com">Vincent Terrasi </a>with any questions.
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