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In Van Caloen v Poglinco (214 AD2d 555, 556 [2d Dept 1995]), the Court granted defendant's motion to strike scandalous and prejudicial materials from the plaintiff's bill of particulars, which referenced "collateral matters regarding the defendant Poglinco's past history that are unrelated to the instant litigation," because these matters were "unnecessary" to the plaintiffs’ causes of action and were "seriously prejudicial to the defendant." (Id. at 557.)
Summary of this case from Conway v. KaplanOpinion
April 3, 1995
Appeal from the Supreme Court, Westchester County (Colabella, J.).
Ordered that, on the Court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal from so much of the order entered February 7, 1992, as denied that branch of his motion which was to strike scandalous and prejudicial matter from the plaintiffs' bill of particulars, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,
Ordered that the appeal and cross appeal from so much of the order entered February 7, 1992, as (1) granted the branch of the plaintiffs' cross motion which was for leave to file an amended complaint and (2) granted the branch of the defendant's motion which was for a protective order, are dismissed, as that order was superseded by the order entered May 21, 1992, made upon reargument; and it is further,
Ordered that the order entered February 7, 1992, is reversed insofar as reviewed, without costs or disbursements, and the branch of the defendant's motion which was to strike scandalous and prejudicial material from the plaintiffs' bill of particulars is granted; and it is further,
Ordered that the order entered May 21, 1992, is reversed insofar as reviewed, the branch of the defendant's motion which was for a protective order is denied and the provision of the order entered February 7, 1992, which granted that branch of the defendant's motion is vacated, and the branch of the plaintiffs' cross motion which was for leave to serve an amended complaint is denied and the provision of the order entered February 7, 1992, which granted that branch of the plaintiffs' cross motion is vacated.
The sixth, seventh, and eighth causes of action in the plaintiffs' amended complaint do not state a claim upon which relief can be granted. The plaintiffs have failed to allege the elements necessary to support a cause of action for fraudulent misrepresentation against the defendant John A. Poglinco (see, e.g., Channel Master Corp. v Aluminium Ltd. Sales, 4 N.Y.2d 403, 407; Clearview Concrete Prod. Corp. v S. Charles Gherardi, Inc., 88 A.D.2d 461; Meese v Miller, 79 A.D.2d 237; see also, CPLR 3016 [b]), and have similarly failed to state a cause of action for intentional infliction of physical and mental harm (see, Burns Jackson Miller Summit Spitzer v Lindner, 59 N.Y.2d 314; ATI Inc. v Ruder Finn, 42 N.Y.2d 454; Patane v Griffin, 164 A.D.2d 192; Kaplan v Dart Towing, 159 A.D.2d 610, 612; Twitchell v MacKay, 78 A.D.2d 125; Dries v Gregor, 72 A.D.2d 231, 235). As the plaintiffs concede, there is no separate cause of action for punitive damages (Friar v Vanguard Holding Corp., 78 A.D.2d 83). Therefore, the Supreme Court should have denied the branch of the cross motion which was for leave to serve an amended complaint.
The plaintiffs have incorporated in their bill of particulars references to collateral matters regarding the defendant Poglinco's past history that are unrelated to the instant litigation. These matters should be stricken from the plaintiffs' bill of particulars as unnecessary to their causes of action and as seriously prejudicial to the defendant. Should the facts related therein become relevant at trial, their admissibility should be determined by the Trial Judge in light of the posture of the case at that juncture (see, Wegman v Dairylea Coop., 50 A.D.2d 108; Schachter v Massachusetts Protective Assn., 39 A.D.2d 540; see also, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3024:4, at 322-323).
Education Law § 6527 (3) exempts from discovery only "proceedings [and] * * * records relating to [a hospital's] performance of a medical or a quality assurance review function". As the defendant Poglinco has not alleged that the information sought by the plaintiffs was engendered and used in the course of formal proceedings by a hospital review committee, his applications for hospital privileges and his personnel file are not protected from disclosure (see, e.g., Bush v Dolan, 149 A.D.2d 799; cf., Parker v St. Clare's Hosp., 159 A.D.2d 919; Carroll v Nunez, 137 A.D.2d 911; Kiefer v Mather Mem. Hosp., 93 A.D.2d 856). In the absence of a properly asserted privilege, any "knowledge the hospital may have had regarding [a staff physician's] alleged incompetence is * * * relevant and subject to disclosure," where, as here, the plaintiffs contend that the defendant hospital was negligent in granting privileges to the defendant Poglinco (Byork v Carmer, 109 A.D.2d 1087, 1088; see also, Raschel v Rish, 110 A.D.2d 1067; Larsson v Mithallal, 72 A.D.2d 806). Copertino, J.P., Pizzuto, Joy and Friedmann, JJ., concur.