In Tawedros v. St. Vincent's Hosp. of New York, 281 A.D.2d 184, 721 N.Y.S.2d 237 (1st Dep't 2001), a medical malpractice action, the First Department affirmed the trial court's decision denying plaintiff's motion to strike the answer of the defendant Hospital based on the Hospital's loss of the original medical records, finding issues of fact which warranted a trial.

Since the defendant had produced a copy of the record, albeit "admittedly incomplete and allegedly altered," the court concluded that the jury, once given appropriate instructions, could "weigh the credibility of defendant's explanations for destroying the original record." Id.

The court further found that the missing evidence did not deprive plaintiff of the ability to prove his case or give the defendant an unfair advantage.

Therefore, drastic sanctions based on spoliation were unwarranted.