Ordered that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPLR 3216 to impose sanctions for spoliation of evidence, and substituting therefor a provision granting that branch of the motion to the extent of directing that an adverse inference charge be given against the plaintiff at trial with respect to the unavailable evidence; as so modified, the...
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