Bennett v Gordon

Bennett v Gordon 2012 NY Slip Op 06855 Decided on October 11, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 11, 2012
Andrias, J.P., Friedman, Moskowitz, Freedman, Manzanet-Daniels, JJ.
8277N 306933/09

[*1]Lawrence Bennett, et al., Plaintiffs-Respondents-Appellants,

v

Sydney Gordon, etc., et al., Defendants-Appellants-Respondents.




Lester Schwab Katz & Dwyer, LLP, New York (Lawrence A.
Steckman of counsel), for appellants-respondents.
Law Office of Jeffrey I. Schwimmer, New York (Jeffrey I.
Schwimmer of counsel), for respondents-appellants.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered August 15, 2011, which, upon defendants' motion for an order compelling outstanding discovery and plaintiffs' cross motion for a protective order, directed plaintiffs to provide authorizations for a legal file from plaintiff Lawrence Bennett's 1998 personal injury action, limited to the bill of particulars, summons and complaint and medical records pertaining to a right shoulder injury, and directed plaintiffs to provide authorizations for a workers' compensation file relating to the 1998 accident, unanimously affirmed, without costs.

Plaintiffs' argument that defendants' appeal is defective because it relies heavily upon the complaint which was not submitted on the motion and is dehors the record, is unavailing. This Court may take judicial notice of the complaint in the case file (cf. Walker v City of New York, 46 AD3d 278, 282 [1st Dept 2007]; see Matter of Magid v Gabel, 25 AD2d 649 [1st Dept 1966]).

The trial court exercised its discretion in a provident manner in this discovery dispute. The court properly allowed defendants limited discovery as to a prior injury Lawrence Bennett suffered which damaged his right shoulder when he attempted to deflect a concrete "form" from hitting his head as it fell from a height (see CPLR 3101[a]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-408 [1968]; Matter of Matter of New York County DES Litig., 171 AD2d 119, 123 [1st Dept 1991]). Plaintiff, as a consequence of his more recent accident, which is the basis for the instant personal injury action, has alleged regular tremors in his upper extremities and overall weakness in addition to more specific injuries to his head and left shoulder, all of which has allegedly rendered him permanently disabled and has resulted in his loss of enjoyment of life. The court reasonably concluded that the aforesaid allegations conceivably derived from Bennett's prior accident.

The motion court also reasonably determined that Bennett's injuries arising from the two accidents were sufficiently distinct, and his recent head and left shoulder injuries were relatively [*2]new complaints, thereby undermining Gordon's argument for discovery of Bennett's entire medical history.

We have considered the parties' remaining arguments and find
them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 11, 2012

CLERK