Almonte v Mancuso

Almonte v Mancuso 2015 NY Slip Op 07593 Decided on October 20, 2015 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 20, 2015
Gonzalez, P.J., Mazzarelli, Richter, Manzanet-Daniels, JJ.
15914 305163/13

[*1] Orlando D. Almonte, Plaintiff-Respondent,

v

Clara Mancuso, et al., Defendants-Appellants.

White Fleischner & Fino, L.P., New York (Alisa Dultz of counsel), for appellants.

Terilli & Tintle, PLLC, Lake Success (Marshall D. Sweetbaum of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about January 20, 2015, which, to the extent appealed from as limited by the briefs, denied defendants' motion to compel plaintiff to provide an unrestricted authorization for production of his entire employment file with the MTA/New York City Transit Authority, unanimously modified, on the law and the facts, to grant the motion to the extent of requiring plaintiff to provide an authorization for any medical records related to the claimed injuries in his employment file from one year prior to the motor vehicle accident at issue to the present, and otherwise affirmed, without costs.

By bringing this action to recover for personal injuries allegedly suffered in a motor vehicle accident, plaintiff placed his medical condition in controversy and waived the physician-patient privilege with respect to pertinent medical records (see Dillenbeck v Hess, 73 NY2d 278, 287 [1989]; Pirone v Castro, 82 AD3d 431, 432 [1st Dept 2011]). Plaintiff has failed to proffer any reason for refusing to comply with the preliminary conference order to the extent it directed him to provide a written authorization for the release of medical records in his employment file (see CPLR 3121[a]; Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456—457 [1983]). Accordingly, defendants' motion should be granted to the extent indicated. However, the court providently exercised its discretion in determining that discovery of other documents that may be contained in plaintiff's employment file, including disciplinary records, is not material and necessary to the defense of the action.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2015

CLERK