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Gene Brojan v. Gaul Construction Co.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


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This opinion is uncorrected and will not be published in the printed Official Reports.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

Weston, J.P., dissents and votes to affirm the judgment in the following memorandum:

In view of plaintiff's admitted lack of readiness in this protracted litigation, I perceive no improvident exercise of discretion in the court's denial of plaintiff's request to mark the case off the calendar and in its dismissal of the case in its entirety. Accordingly, I respectfully dissent and vote to affirm the judgment.

Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.13 (h) specifically provides, in relevant part, that "unless the judge presiding at the trial in the interests of justice and upon a showing of good cause shall hold otherwise, the party seeking to recover damages shall be precluded at the trial from offering in evidence any part of the hospital records and all other records . . . not made available pursuant to this rule, and no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged, nor will the court hear the testimony of any treating or examining medical providers whose medical reports have not been served as provided by this rule." Despite the rule's mandatory language, courts have excused noncompliance with the rule where such noncompliance is alleged, for the first time, at the beginning of trial (see e.g. Rhoden v Montalbo, 127 AD2d 645 [1987]; Valenti v Chanice, 75 AD2d 850 [1980]; Jacome v Singh, 7 Misc 3d 40 [App Term, 2d & 11th Jud Dists 2005]). The rationale is that a party -- aware of a defect in advance -- should not be permitted to wait until trial to seek preclusion, since "[t]o do so would result in extreme surprise and prejudice to the [other side], antithetical to the purpose of such rules" (Valenti v Chanice, 75 AD2d at 850).

Here, however, plaintiff's counsel was the first to admit that she was not ready for trial: "Your Honor, I am not ready to proceed today. I have requested for the Court to grant us permission to have the case marked off at this time as pursuant to the discussions with Defense Counsel and the Court Attorney. We felt there were certain items that needed to be provided, items of discovery."*fn1 On this record, it cannot be said that plaintiff suffered "extreme surprise or prejudice" as a result of defendants' objection to having the matter marked off the calendar (see id.). To the contrary, plaintiff was fully aware that there was outstanding discovery and was unable to proceed (compare Rhoden v Montalbo, 127 AD2d at 646-647; Valenti v Chanice, 75 AD2d at 850; Jacome v Singh, 7 Misc 3d at 41). In view of this admission, and plaintiff's failure in this decade-long litigation to turn over chiropractic reports necessary to support a claim of serious injury, the court acted well within its discretion in precluding the testimony of plaintiff's chiropractor and dismissing the matter in its entirety. Accordingly, I vote to affirm the judgment.

Decision Date: April 26, 2011


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