Second Department Dismisses Negligent Spoliation Cause of Action

In Hillman v. Sinha, the plaintiff's wife advised the defendant in 2007 that she was unhappy with her husband's care and that her husband would no longer be a patient.  The plaintiff's medical records were subsequently destroyed when the defendant converted the original medical records to electronic format.  In 2008, the plaintiff commenced a medical malpractice action against the defendant and also asserted a separate cause of action for negligent spoliation of evidence.  The defendant then moved to dismiss the cause of action for negligent spoliation. The Supreme Court denied the motion, but the Appellate Division reversed.  The Court, extending the Court of Appeals' holding in Oretga v. City of New York (9 N.Y.3d 69, 73), found that permitting such an action would require resort to "hypothetical theories or speculative assumptions about the nature of the harm incurred or the extent of plaintiff's damages."  The court, also relying on Ortega, held that existing remedies were sufficient to deter such conduct.