Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered December 15, 2011.
Released on April 26, 2013
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.
The order, insofar as appealed from, granted the motion of defendant Gerald Breen to compel plaintiff to produce certain medical reports, under penalty of preclusion, and denied the cross motion of plaintiff for a protective order.
It is hereby ORDERED that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained as a result of his exposure to lead-based paint while residing in a number of apartments rented to his mother from 1992 through 1996, including apartments owned by A. Gi Yi and Gerald Breen (defendants). As amplified by his bills of particulars, plaintiff alleged that he suffered 35 injuries as a result of his lead exposure, including neurological damage, diminished cognitive function and intelligence, behavioral problems, developmental deficiencies, increased probability of emotional and psychological impairments, hyperactivity, irritability, memory deficits, decreased educational and employment opportunities, and speech and language delays.
Pursuant to CPLR 3121 and Uniform Rule 202.17 (22 NYCRR 202.17), Breen served notices fixing the time and place of two medical examinations (hereafter, examinations) and requested "copies of any reports of any physicians who have treated or examined the plaintiff" in advance of the examinations (see 22 NYCRR 202.17 [b] ). In response, plaintiff provided Breen with educational records and medical records of his treating physicians. None of those records, however, linked the particular conditions, symptoms, or problems that plaintiff was experiencing with his exposure to lead (see Nero v Kendrick, 100 AD3d 1383, 1383).
Breen postponed the examinations and moved to compel plaintiff to produce "medical reports of treating or examining medical service providers detailing a diagnosis of all injuries alleged to have been sustained by plaintiff as a result of exposure to lead-based paint" or, in the alternative, to "preclud[e] the plaintiff from introducing proof concerning said injuries." Breen asserted that, without such information, he would be "forced to determine the nature and extent of the [examinations] to be performed without any evidence that the alleged injuries sustained by plaintiff: (1) exist, and (2) are causally related to ingestion and/or inhalation of lead-based paint as alleged in [the c]omplaint." A. Gi Yi joined in Breen's motion to compel.
Plaintiff opposed the motion and cross-moved for, inter alia, a protective order pursuant to CPLR 3103. Plaintiff contended that his bills of particulars provided defendants with sufficient notice of his alleged injuries. With respect to causation, plaintiff's attorney asserted that plaintiff "suffered [lead] neurotoxicity at . . . blood lead levels known to cause severe brain and nerve damage during his residence at the defendants' respective properties," and cited various government reports and studies detailing the potential effects of lead poisoning in young children. Plaintiff further contended that defendants were in effect seeking an expert report pursuant to CPLR 3101 (d) as opposed to the report of a medical provider pursuant to 22 NYCRR 202.17, and were improperly requesting that plaintiff "prematurely go through the expense of retaining an expert."
Plaintiff appeals from an order that granted the motion "in all respects," denied the cross motion, and directed plaintiff to produce "a medical report or reports of any treating or examining medical service provider detailing a diagnosis of any injuries alleged to have been sustained by the plaintiff . . . and causally relating said injuries to plaintiff's alleged exposure to lead-based paint . . . before any [examinations] are conducted." The order further provided that, "in the event the plaintiff fails to produce the aforementioned report or reports, [he] shall be precluded from introducing any proof concerning injuries alleged to have been sustained by the plaintiff." We affirm.
It is well settled that "[a] trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion" (Finnegan v Peter, Sr. & Mary L. Liberatore Family Ltd. Partnership, 90 AD3d 1676, 1677; see Hann v Black, 96 AD3d 1503, 1504; WILJEFF, LLC v United Realty Mgt. Corp., 82 AD3d 1616, 1619). New York has long adhered to a policy of liberal, open pretrial disclosure (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954; DiMichel v South Buffalo Ry. Corp., 80 NY2d 184, 193). CPLR 3101 (a), which governs discoverability, broadly provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action" (see Hoenig v Westphal, 52 NY2d 605, 608; Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3101:4). That provision "has been liberally construed to require disclosure where the matter sought will assist preparation for trial by sharpening the issues and reducing delay ...