Vodoff v Mehmood

Vodoff v Mehmood 2012 NY Slip Op 01244 Decided on February 14, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 14, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RUTH C. BALKIN
CHERYL E. CHAMBERS
LEONARD B. AUSTIN, JJ.
2011-09641
(Index No. 18998/10)

[*1]Eduard Vodoff, respondent,

v

Tahir Mehmood, et al., appellants.




Marjorie E. Bornes, New York, N.Y., for appellants.
Dinkes & Schwitzer, New York, N.Y. (Naomi Skura of
counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated August 11, 2011, which denied their motion to compel the plaintiff to provide authorizations for the release of certain medical records pertaining to the plaintiff's preexisting condition of diabetes.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the defendants' motion to compel the plaintiff to provide authorizations for the release of certain medical records pertaining to the plaintiff's preexisting condition of diabetes is granted.

A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue (see CPLR 3121[a]; Dillenbeck v Hess, 73 NY2d 278; Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456-457; Diamond v Ross Orthopedic Group, P.C., 41 AD3d 768). Further, CPLR 3101(a) requires full disclosure of all evidence material and necessary to the prosecution or defense of an action, regardless of the burden of proof (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403). Here, the defendants met their initial burden of showing that the nature and severity of the plaintiff's pre-existing medical condition is material and necessary to the issue of damages, if any, recoverable for a claimed loss of enjoyment of life due to his current injuries (see Abdalla v Mazl Taxi, Inc., 66 AD3d 803, 804; Amoroso v City of New York, 66 AD3d 618; Orlando v Richmond Precast, Inc., 53 AD3d 534; Weber v Ryder TRS, Inc., 49 AD3d 865; Diamond v Ross Orthopedic Group, P.C., 41 AD3d at 769). In opposition, the plaintiff failed to establish that he did not suffer from a preexisting medical condition of diabetes. Accordingly, the defendants' motion to compel the plaintiff to provide authorizations for the release of certain medical records pertaining to his preexisting condition of diabetes should have been granted.
DILLON, J.P., BALKIN, CHAMBERS and AUSTIN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court