McGlone v Port Auth. of N.Y. & N.J.

McGlone v Port Auth. of N.Y. & N.J. 2011 NY Slip Op 08975 Decided on December 13, 2011 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 December 13, 2011
Gonzalez, P.J., Friedman, Moskowitz, Acosta, Richter, JJ. 6310N- Index 6310NA &
111625/06 -4612

[*1]Michael McGlone, et al., Plaintiffs-Appellants,

v

The Port Authority of New York and New Jersey, et al., Defendants-Respondents, Semcor Equipment and Manufacturing Corporation, Defendant.




David W. McCarthy, Woodbury, for appellants.
Fabiani Cohen & Hall, LLP, New York (Michele V. Ficarra of
counsel), for respondents.

Orders, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 10, 2011, which, in this personal injury action, to the extent appealed from, denied plaintiffs' motion to strike defendants-respondents' answer, and granted defendants' motion for discovery to the extent of requiring plaintiff Michael McGlone to provide authorizations for all of his medical records unrestricted as to date as addressed in defendants' motion, including plaintiff's medical records from his enlistment in the United States Marine Corp., unanimously affirmed, without costs.

Although defendants did not timely comply with prior court-ordered deadlines, the record supports the motion court's determination that they substantially complied with their disclosure obligations and that any failure to comply was not wilful, contumacious or in bad faith (see Perez v New York City Tr. Auth., 73 AD3d 529, 530 [2010]; Banner v New York City Hous. Auth., 73 AD3d 502, 503 [2010]).

The court also properly directed plaintiff to provide authorizations for all medical records unrestricted by date as sought by defendants in prior discovery requests. Plaintiff averred in his bill of particulars that the injuries he allegedly sustained as a result of the subject accident aggravated or exacerbated underlying conditions that were asymptomatic before the accident, and that he was disabled as a result. In light of his averments, plaintiff voluntarily placed his physical condition in issue; therefore, defendants are entitled to discovery to determine the extent, if any, that plaintiff's claimed injuries "are attributable to accidents other than the one at issue here" (Rega v Avon Prods., Inc., 49 AD3d 329, 330 [2008]; cf. Noble v Ackerman, 216 AD2d 140 [1995]). [*2] M-4612 - McGlone, et al., v Port Authority, et al.,Motion to strike portions of respondents' brief referring to matters dehors the record granted.

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

ENTERED: DECEMBER 13, 2011

CLERK