Opinion
17139 Index No. 21079/19 Case No. 2022–03276
01-19-2023
James JOSEPH, Plaintiff–Respondent, v. Shabeer EDUN, Defendant–Appellant.
Carman Callahan & Ingham, LLP, Farmingdale (Anne P. O'Brian of counsel), for appellant. Law Office of Dino J. Domina, Hauppauge (Melanie N. Ellner of counsel), for respondent.
Carman Callahan & Ingham, LLP, Farmingdale (Anne P. O'Brian of counsel), for appellant.
Law Office of Dino J. Domina, Hauppauge (Melanie N. Ellner of counsel), for respondent.
Renwick, J.P., Webber, Moulton, Gonza´lez, Rodriguez, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered June 7, 2022, which denied defendant's motion to preclude plaintiff from testifying or offering evidence on the issue of liability at trial for failure to comply with discovery demands, or to compel plaintiff to provide the requested discovery, unanimously modified, on the law, to compel authorizations for plaintiff's college records and medical history, and otherwise affirmed, without costs.
In this personal injury action, plaintiff alleges that he was injured when defendant's vehicle hit a truck while he was standing inside it loading cargo.
Supreme Court improvidently exercised its discretion when it denied defendant's motion seeking authorizations for plaintiff's college records and past medical records, including records from Jacobi Hospital related to a 2014 assault, plaintiff's records for treatment at Jamaica Hospital in 2015, and records from Lenox Hill Radiology for a 2015 x-ray (see Forman v. Henkin, 30 N.Y.3d 656, 662, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] ; Reyes v. Lexington 79th Corp, 149 A.D.3d 508, 509, 51 N.Y.S.3d 500 [1st Dept. 2017] ). Plaintiff's supplemental bill of particulars included claims for post-traumatic stress disorder, anxiety, depression, irritability, difficulty sleeping, and substantial impairment to his ability to engage in normal daily activities. The bill of particulars also asserted that the accident exacerbated pre-existing asymptomatic conditions. However, records from Brunswick Hospital, where plaintiff was treated after the accident, revealed notes from a social worker who interviewed plaintiff's mother and father around one year after the accident underlying this complaint; both of them stated that plaintiff's behavior changed while he was away at college because of a trauma he suffered there. Thus, defendant is entitled to plaintiff's academic and medical records to determine to what extent the injuries complained of are attributable, if at all, to the trauma plaintiff suffered in college (see Reyes, 149 A.D.3d at 509, 51 N.Y.S.3d 500 ; Fell v. Presbyterian Hosp. in City of New York at Columbia–Presbyterian Med. Ctr., 98 A.D.2d 624, 625, 469 N.Y.S.2d 375 [1st Dept. 1983] ). Plaintiff also voluntarily placed his physical and psychological condition in issue by alleging in the bill of particulars that the accident aggravated or exacerbated underlying conditions that were asymptomatic before the accident (see Rega v. Avon Prods., Inc., 49 A.D.3d 329, 330, 854 N.Y.S.2d 688 [1st Dept. 2008] ). Defendants are therefore entitled to determine the extent, if any, that plaintiff's claimed injuries are attributable to accidents other than the one underlying this action ( McGlone v. Port Auth. of N.Y. & N.J., 90 A.D.3d 479, 480, 934 N.Y.S.2d 161 [1st Dept. 2011] ; see Rega, 49 A.D.3d at 330, 854 N.Y.S.2d 688 ).