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HOLLIDAY v. "JOHN JONES"

297 A.D.2d 471 (2002)

746 N.Y.S.2d 901

KASIM HOLLIDAY et al., Appellants, v. "JOHN JONES" et al., Defendants, and CITY OF NEW YORK et al., Respondents.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided September 5, 2002.

The motion court properly exercised its discretion in declining to impose the harsh sanctions reserved for spoliation of evidence (see, Smith v New York City Health & Hosps. Corp., 284 A.D.2d 121, lv denied 97 N.Y.2d 607), since the required element of an unfairly gained advantage (see, Tawedros v St. Vincent's Hosp., 281 A.D.2d 184) was not sufficiently demonstrated. While the...

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