DiMauro v DOLP 205 Props. 11

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DiMauro v DOLP 205 Props. 11 2012 NY Slip Op 31263(U) May 11, 2012 Sup Ct, New York County Docket Number: 111748/08 Judge: Martin Shulman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 511512012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: ~ M S-___A I I A ~ HUL --- ; PART Justlce rrm ,,,, " , , . , .. , Index Number 111748/2008 DIMAURO, LOUIS 1 1 \-)q&!psC INDEX NO. VS. - MOTION DATE DOLP 205 PROPERTIES SEQUENCE NUMBER 001 MOTION SEQ. NO. VACATE NOTE OF ISSUE/READINESS The following papers, numbered 1 to Notlce of MotJon/- Anowerlng Affldavits - Exhlblts Replylng Affldavlts - 0a I - , were read on thls motion t o m 4 - -AMdavits - Exhlbita A -x W k 4 ;YAJ e- Ckrb&- )NO(*). (No(8). fi-B , Upon the foregoing paperp, it is ordered that thl8 motion Is & c &-.& CA \ 3 i 7 INo(s). . L @ w I uL & $c / CQ_ N k W YOHK GOlJNTY CLERK'S OFFICE 1. CHECK ONE: ..................................................................... ........................... CHECK IF APPROPRIATE: ................................................ 2. CHECK AS APPROPRIATE: 3. CASE DISPOSED MOTION IS: L J ^GRANTED 0DENIED SETTLE ORDER 1 DO NOT POST 1 ~ N o ~ $ & P ~ i ~ ~ ~ ~ %&RANTED IN PART LlOTHER nSUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Plaintiffs, Index No. 111748108 -againstDOLP 205 PROPERTIES 11, DURST ORGANIZATION, INC. and ROYAL REALTY GORP., MARTIN SHULMAN, J. In this personal injury action defendants moves to vacate plaintiffs note of issue and compel plaintiffs to provide outstanding discovery. Plaintiffs filed the note of issue on November 30, 201 I.Defendants motion contends that the following discovery is authorizations for various medical providers, diagnostic outstanding from plaintiffs: I) facilities, collateral source providers, Workers Compensation records, federal tax returns for the period 2005-2007 and Social Security Disability records; 2) photographs taken by plaintiffs expert witnesses; and 3) photographs produced at John Ramberg s deposition. Plaintiff Louis DiMauro ( Louis ) injured his left arm in a work related accident and alleges he has been unable to work as a result. Defendants motion primarily seeks authorizations for medical providers who treated Louis for a lower back condition which is not at issue in this action. Defendants contend that Louis back condition contributes to his alleged inability to work. In accordance with court orders, plaintiffs counsel previously provided an authorization for Dr. Kenneth Chapman, who treated Louis back condition. Dr. Chapman s records, which Defendants received in [* 3] November 201 1, indicate that other providers have treated Louis lower back condition. Defendants seek authorizations and/or the identities of these providers. Plaintiffs counsel opposes the request for further authorizations, contending in relevant part that: I ) Louis has not affirmatively placed his back condition in controversy; 2) the request is overbroad and burdensome; and 3) records from physicians who treated Louis for incidental back pain are irrelevant. Plaintiffs counsel states that Louis back injuries have not contributed to his current and ongoing disability, as reflected by the fact that he continued to work after his back injury and throughout treatment for his back without complaint. It is well settled that, although [a] plaintiff who commences a personal injury action has waived the physician-patient privilege to t h e extent that his physical or mental condition is affirmatively placed in controversy (Carter v. Fantauzzo, 256 AD2d I 189, 1I 9 0 [4tt1 Dept 19981; Mayer v. Cusyck, 284 AD2d 937, 938 [4 h Dept 2001]), the waiver of that privilege does not permit discovery of information involving unrelated illnesses and treatments (Carter, 256 AD2d at 1190). The determinative factor is whether the records sought to be discovered are material and necessary in defense of the action (Wachtman v. Trocaire Coll., 143 AD2d 527, 528 [4th Dept 19881, quoting Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 457 [1983]; see CPLR g 1 0 1[a]), or whether the records may contain information reasonably calculated to lead to relevant evidence (Zydel v. Manges, 83 AD2d 987 [4 t Dept 19811). Here, defendants respond to plaintiffs arguments by pointing to a notation in Dr. Chapman s records indicating that Louis cannot work secondary to his low back and 2 [* 4] lumbar radicular pain and based on the workers compensation guidelines the patient is markedly partially disabled. See Exh. B to Harris Reply Aff., at page 32. In light of the foregoing, this court concludes that the authorizations and records sought are relevant to Louis claimed disability and as such are material and necessary to the defense of this action. As such, plaintiffs are directed to provide the outstanding authorizations for the providers identified at paragraph 5 of the supporting affidavit within 20 days of the date hereof, With respect to defendants remaining outstanding discovery demands, it appears plaintiffs have supplied an authorization for the Social Security Disability records (see Exh. B to Landa Aff. in Opp.), t h u s rendering this portion of the motion moot. Additionally, plaintiffs d o not address defendants request for copies of the photographs produced at John Ramberg s deposition and thus are directed to produce same within 20 days of the date hereof, if they have not already done so. Turning to plaintiffs expert witnesses photographs, Plaintiffs contend that defendants own expert took the same photos at the same time as plaintiffs experts during an on-site inspection. Defendants do not address plaintiffs arguments opposing this demand and as such defendants request is denied. Finally, plaintiffs do not address the requests for Workers Compensation records and plaintiffs federal tax returns for the period 2005-2007. Plaintiffs are directed to produce same within 20 days of the date hereof, if they have not already done so. Defendants request to strike the note of issue is denied. This action can remain on the trial calendar, and be adjourned if necessary, pending the completion of the discovery set forth above. Accordingly, it is hereby 3 [* 5] ORDERED that the portion of defendants motion seeking an order vacating the note of issue and striking this case from the trial calendar is denied, and the portion of defendants motion to compel discovery is granted in part and denied in part to the extent set forth above. This constitutes this court s decision and order. Courtesy copies of this decision and order have been provided to counsel for the parties Dated: New York, New York May 11,2012 HON. MARTIN SHULMAN, J.S.C. NEW YOHK COUNTY CLERKS OFFICE 4

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