Xiao Yang Chen v. Fischer

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (DiBella, J.), dated January 27, 2009, as denied that branch of his motion *1168which was to dismiss, due to spoliation of evidence and pursuant to CPLR 3126, the causes of action alleging injuries to the plaintiffs left ear.

Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the defendant’s motion which was to dismiss the plaintiff’s causes of…