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Gene Brojan v. Gaul Construction Co.

April 26, 2011

GENE BROJAN, APPELLANT,
v.
GAUL CONSTRUCTION CO., INC. AND MARK MCFADZIEN, RESPONDENTS. GAUL CONSTRUCTION CO., INC. AND MARK MCFADZIEN, THIRD-PARTY PLAINTIFFS, CESAR LLUVERES AND BARBARA GONZALEZ, THIRD-PARTY DEFENDANTS.



Appeal from a judgment of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 19, 2008.

Brojan v Gaul Constr. Co., Inc.

Decided on April 26, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ.

The judgment dismissed the action.

ORDERED that the judgment is reversed, without costs, the complaint is reinstated and the matter is remitted to the Civil Court for all further proceedings.

Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident on October 12, 1995. Plaintiff filed his first notice of trial on September 3, 2004, and, in response, defendants demanded a trial by jury. The Civil Court marked the case off the calendar, stating that plaintiff was not ready to proceed. Thereafter, plaintiff moved to restore the matter to the calendar, arguing that there was outstanding discovery, which plaintiff annexed to his motion papers. Plaintiff's unopposed motion was granted on defendants' default, and, pursuant to the direction of the court, plaintiff filed a new notice of trial.

On the date of trial, September 24, 2007, defendants' attorney asserted that his office had "informed" plaintiff's counsel several times, including the Thursday prior to trial, that defendants had not received the "appropriate" medical reports from plaintiff's treating chiropractor, but, instead, only bills. Plaintiff's counsel stated that she was not ready to proceed because of outstanding discovery and asked the court to mark the case off the calendar, to which request defendants objected. The Civil Court dismissed the action on the ground that plaintiff was not ready to proceed. The court found that plaintiff should have known whether all discovery had been exchanged, and that plaintiff did not show good cause for permitting his treating chiropractor to testify without having exchanged the records. A judgment dismissing the action was entered on June 19, 2008. This appeal by plaintiff ensued.

Normally, a party's noncompliance with the rules governing the exchange of medical reports, as set forth in Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.13, should be addressed at the calendar stage of litigation (see Rhoden v Montalbo, 127 AD2d 645 [1987]; Valenti v Chanice, 75 AD2d 850 [1980]). In the present case, defense counsel was in receipt of some of the office records of plaintiff's treating chiropractor and did not object to the adequacy of those records until jury selection was about to commence. In our opinion, the Civil Court improvidently exercised its discretion when it implicitly precluded the testimony of plaintiff's chiropractor and dismissed the action. Contrary to the determination of the Civil Court, plaintiff showed good cause for not making all the medical records available in accordance with the rules governing the exchange of medical information.

Accordingly, the judgment is reversed, the complaint is reinstated and the matter is remitted to the Civil Court for all further proceedings.

Golia and Rios, JJ., concur.

Weston, J.P., dissents in a separate ...


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