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Walters v. Sallah

Supreme Court of New York, First Department

August 6, 2013

Delmo Walters, Plaintiff-Respondent,
v.
Fafa Sallah, et al., Defendants-Appellants.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for appellants.

Law Offices of Nelly Stotland & Associates, P.C., Forest Hills (Patrick J. McGrath of counsel), for respondent.

Gonzalez, P.J., Renwick, DeGrasse, Manzanet-Daniels, Feinman, JJ.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered April 12, 2012, which, insofar as appealed from as limited by the briefs, in this action for personal injuries resulting from a motor vehicle accident, denied defendants' motion to compel plaintiff to provide authorizations to obtain his medical records pertaining to his preexisting arthritis and for his disability records from the Social Security Administration, unanimously reversed, on the law and the facts, without costs, the motion granted, and the matter remanded for further proceedings in accordance with this decision.

Plaintiff seeks to recover damages for permanent injuries allegedly sustained to his knee and wrist in an automobile accident, which continue to be aggravated by sitting, walking, and bending. He also alleges he suffered a serious injury in that he was unable to perform substantially all his usual daily functions for at least 90 out of 180 days following the accident. Essentially, defendants seek medical records to determine whether there is any preexisting arthritis or medical disability, exclusive of the alleged injury to plaintiff's left knee and wrist, which would be the cause of plaintiff's inability to perform substantially all of his usual daily activities.

Defendants met their burden of showing that the requested records relating to plaintiff's arthritis and disability are relevant to a physical condition that plaintiff placed "in controversy" through his deposition testimony and bill of particulars, and which he also reported to defendants' examining chiropractor (see Dillenbeck v Hess, 73 N.Y.2d 278, 287 [1989]; Pirone v Castro, 82 A.D.3d 431 [1st Dept 2011]). However, because of the potentially tangential nature of the discovery involved, we remand to Supreme Court for a determination of the nature of the arthritis and disability plaintiff suffers, and to exercise its discretion to limit the discovery to reasonable parameters, including as to time frame and relevant parts of the body.


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