Opinion
2013-01-8
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.
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.
TOM, J.P., ANDRIAS, FREEDMAN, GISCHE, JJ.
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 N.Y.2d 278, 283–284, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [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 A.D.3d 479, 480, 934 N.Y.S.2d 161 [1st Dept. 2011]; Rega v. Avon Prods., Inc., 49 A.D.3d 329, 330, 854 N.Y.S.2d 688 [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 A.D.3d 502, 916 N.Y.S.2d 113 [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 A.D.3d 516, 516, 934 N.Y.S.2d 309 [1st Dept. 2011] ), which plaintiff's supplemental bill of particulars adequately does ( see Torres v. New York City Tr. Auth., 78 A.D.3d 419, 420, 913 N.Y.S.2d 653 [1st Dept. 2010]; Spiegel v. Gingrich, 74 A.D.3d 425, 426, 905 N.Y.S.2d 141 [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.