Paglen v Shane

[*1] Paglen v Shane 2016 NY Slip Op 50992(U) Decided on May 25, 2016 Supreme Court, Suffolk County Pastoressa, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 25, 2016
Supreme Court, Suffolk County

Keith Paglen, Plaintiff(s),

against

William Shane, Defendant(s).



21589/14



ATTYS FOR PLAINTIFF(S)

SKIP ALAN LEBLANG

325 BROADWAY, SUITE 402

NEW YORK, NY 10007

ATTYS FOR DEFENDANT(S):

BREEN & CLANCY

1355 MOTOR PARKWAY, SUITE 2

HAUPPAUGE, NY 11749
Joseph C. Pastoressa, J.

Pages Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and Affidavits (Affirmations) Annexed______________1________________________

Opposing Affidavits (Affirmations)__________________________________2________________________

Reply Affidavits (Affirmations)_____________________________________3_______________________

_____Affidavit (Affirmation)_______________________________________________________________

Other Papers__________________________________________________________________________

Upon the foregoing papers, it is

ORDEREDthat the motion by the defendant for an order compelling discovery is denied.

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff as a result of a motor vehicle accident that occurred at the intersection of Cambon Avenue and Woodlawn Avenue in Smithtown. The defendant served a demand for authorizations for medical treatment in connection with two prior motor vehicle accidents in which the plaintiff claimed neck and back pain. The plaintiff objected and the defendant now moves to compel the plaintiff to provide the authorizations.

A party must provide 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 Cynthia B v New Rochelle Hosp., 60 NY2d 452; Farrell v E.W. Howell Co., 103 AD3d 772; O'Rourke v Chew, 84 AD3d 1193). However, a party does not waive the privilege with respect to unrelated illnesses or injuries (see Romance v Zavala, 98 AD3d 726; McFarlane v County of Suffolk, 60 AD3d 918; Gill v Mancino, 8 AD3d 340).

Here, the defendant submits a prior claims history for the plaintiff showing the two prior accidents in which he asserted neck and back pain. However, the defendant failed to submit a copy of the bill of particulars specifying the injuries claimed in this action. In opposition, the plaintiff has submitted an affidavit and a copy of his supplemental bill of particulars demonstrating that he is only claiming injuries to his right shoulder and is not making any claims concerning his neck or back. Although the defendant contends in reply that the plaintiff stated that he had pain in his neck and shoulder in his no-fault benefit application, what is relevant is the injuries claimed in this action through the bill of particulars. The defendant has submitted no evidence that the plaintiff is asserting claims for injuries to his neck and back in this action.

The defendant also moves to compel authorizations for the plaintiff's college attendance records. However, the defendant has not submitted any written demand for these records and has not submitted a copy of the bill of particulars indicating that the plaintiff is claiming any lost earnings or lost time from school as a result of the accident. In opposition, the plaintiff has submitted an affidavit asserting that he was working on his thesis from home at the time and that conventional attendance records would not exist. The defendant may question the plaintiff regarding his college work and attendance at his deposition. Accordingly, the motion to compel is denied.

DATED: May 25, 2016HON. JOSEPH C. PASTORESSA, J.S.C.

FINAL DISPOSITIONXNON-FINAL DISPOSITION

H:\CPLR 3124.Paglen v Shane