Justice Ann Pfau
Johnson moved to strike Enzo Clinical Laboratory’s answer for failing to produce discovery in this medical malpractice and wrongful death action arising from the treatment of plaintiff’s decedent and her unborn child. Also, in the event the answer was struck, Johnson sought summary judgment as to liability. A blood sample was taken from decedent and sent to Enzo for testing. Plaintiffs alleged Enzo failed to timely provide decedent’s treating physicians with the blood results claiming same was a factor in causing her premature death. Plaintiff argued Enzo was required to preserve a workstation report for a minimum of seven years under Department of Health regulations, alleging the failure to do so warranted spoliation sanctions. The court disagreed finding statutorily the workstation report was a “worksheet containing instrument readings,” thus Enzo only had a duty to retain it for one year under 10 NYCRR 58-1.11(c)(6), not for seven as provided for under 10 NYCRR 58-1.11(c)(5)(iv). Thus, as the summons and complaint was served upon Enzo more than one year after the workstation report was created, there was no evidence Enzo possessed a copy of it at the time demands for discovery were served. Hence, plaintiffs’ motion was denied.
