Colwin v Katz

Colwin v Katz 2013 NY Slip Op 00050 Decided on January 8, 2013 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 January 8, 2013
Tom, J.P., Andrias, Freedman, Gische, JJ.
8968 111400/09

[*1]Mercedes Colwin, Plaintiff-Respondent,

v

Bruce Katz, M.D., et al., Defendants-Appellants, Juva Skin and Laser Center, Inc., Defendant.




Dwyer & Taglia, New York (Peter R. Taglia of counsel), for
appellants.
Pollack Pollack Isaac & De Cicco, LLP, New York (Jillian
Rosen of counsel), for respondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered August 15, 2012, which denied defendants Bruce Katz, M.D. and Bruce Katz, M.D., P.C.'s motion to compel plaintiff to furnish certain medical authorizations and to serve a further bill of particulars specifying her claims, unanimously modified, on the law, defendants' motion granted to the extent that it sought to compel plaintiff to furnish authorizations for those portions of her dental records about her medical history, and otherwise affirmed, without costs.

In this medical malpractice action, plaintiff alleges that defendant dermatologist Bruce Katz, M.D. caused her to suffer an "aggravation of a pre-existing latent and asymptomatic degenerative condition." Accordingly, defendants sought authorizations for those portions of plaintiff's dental records that discuss her medical history. Inasmuch as plaintiff has clearly voluntarily put her prior medical condition at issue (CPLR 4504[a]; see Dillenbeck v Hess, 73 NY2d 278, 283-284 [1989]), such disclosure is material and necessary for the defense of this action so that defendants may ascertain her condition prior to being treated by Dr. Katz (CPLR 3101[a]; see McGlone v Port Auth. of N.Y. & N.J., 90 AD3d 479, 480 [1st Dept 2011]; Rega v Avon Prods., Inc., 49 AD3d 329, 330 [1st Dept 2008]). Contrary to plaintiff's contention, defendants' demand is tailored, directed at relevant material, and is not tantamount to a fishing expedition (see Ford v Rector, Church-Wardens, Vestrymen of Trinity Church in the City of N.Y., 81 AD3d 502 [1st Dept 2011]).

It was not an improvident exercise of discretion for Supreme Court to deny those branches of defendants' motion which sought to compel plaintiff to furnish a more specific supplemental bill of particulars and to strike plaintiff's initial bill of particulars. As we noted on this matter's prior appeal,
"[t]he purpose of a bill of particulars is to amplify pleadings . . . and prevent surprise at trial" (90 AD3d 516, 516 [1st Dept 2011]), which plaintiff's supplemental bill of particulars adequately does (see Torres v New York City Tr. Auth., 78 AD3d 419, 420 [1st Dept 2010]; Spiegel v [*2]Gingrich, 74 AD3d 425, 426 [1st Dept 2010]). The mere fact that it incorporates the initial bill of particulars, which contained boilerplate averments, is an insufficient ground for disturbing Supreme Court's determination.

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

ENTERED: JANUARY 8, 2013

CLERK