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Breytman v. Olinville Realty, LLC

Supreme Court of New York, Second Department

October 9, 2013

Alexander Breytman, appellant,
v.
Olinville Realty, LLC, respondent. Index No. 2423/06

Alexander Breytman, Brooklyn, N.Y., appellant pro se.

Jaffe & Asher LLP, New York, N.Y. (Ira N. Glauber and Jeffrey Zimmerman of counsel), for respondent.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Lewis, J.), dated May 6, 2011, which, among other things, granted those branches of the defendant's motion which were to compel him to sign authorizations for the release of certain medical records, to compel him to appear for a deposition, and to vacate the note of issue, and (2) a second order of the same court, also dated May 6, 2011, which, sua sponte, enjoined him from submitting any further motions or cross motions without leave of the court.

ORDERED that on the Court's own motion, the notice of appeal is deemed to also be an application for leave to appeal from the second order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the orders are affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

Contrary to the plaintiff's contention, the Supreme Court properly granted those branches of the defendant's motion which were to compel him to sign authorizations for the release of certain medical records, to compel him to appear for a deposition, and to vacate the note of issue. The Supreme Court correctly compelled the plaintiff to sign the authorizations since he placed his medical condition at issue (see Diamond v Ross Orthopedic Group, P.C., 41 A.D.3d 768). The Supreme Court also correctly compelled the plaintiff to appear for a deposition, since the defendant demonstrated that the deposition was reasonably calculated to result in the disclosure of facts necessary to defend the action (see Friel v Papa, 56 A.D.3d 607). Since the defendant moved to vacate the note of issue within the time prescribed for doing so pursuant to 22 NYCRR 202.21(e), and demonstrated that discovery was not complete in that the deposition of the plaintiff had not occurred, medical authorizations still had not been provided, and the action was not ready for trial, the note of issue was properly vacated (see Kent Realty, LLC v Danica Group, LLC, 102 A.D.3d 927; Jacobs v Johnston, 97 A.D.3d 538; Gallo v SCG Select Carrier Group, L.P., 91 A.D.3d 714).

Further, the Supreme Court properly enjoined the plaintiff from submitting any further motions or cross motions without leave of the court, based on his abuse of the judicial process (see Matter of Nieves-Ford v Gordon, 53 A.D.3d 581; Matter of Simpson v Ptaszynska, 41 A.D.3d 607; Matter of Pignataro v Davis, 8 A.D.3d 487).

The plaintiff's remaining contentions are without merit.

MASTRO, J.P., DICKERSON, CHAMBERS and ROMAN, JJ., concur.


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