Arias v. MSC Express Inc.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered September 10, 2015, which denied defendants’ motion to dismiss or strike plaintiff’s back injury claims as a spoliation sanction, unanimously affirmed, with costs.

The motion court providently exercised its discretion in denying the motion, since plaintiff did not violate any order (see CPLR 3126), and did not intentionally or negligently dispose of crucial items of evidence (Baldwin v Gerard Ave., LLC, 58 AD3d 484, 485 [1st Dept 2009]). Plaintiff’s refusal to appear at an independent medical examination (IME) before his back…