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O'Brien v. Village of Babylon

Supreme Court of New York, Second Department

August 2, 2017

Donald O'Brien, et al., appellants,
v.
Village of Babylon, defendant, Lessing's, Inc., et al., respondents. Index No. 4211/13

          Submitted - May 30, 2017

         D52983 H/afa

          Sullivan Papain Block McGrath & Cannavo, P.C., New York, NY (Stephen C. Glasser and Gabriel A. Arce-Yee of counsel), for appellants.

          White Fleischner & Fino, LLP, Mineola, NY (Maria DellaRatta of counsel), for respondents.

          CHERYL E. CHAMBERS, J.P. ROBERT J. MILLER COLLEEN D. DUFFY FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated August 26, 2015, as denied their motion pursuant to CPLR 3124 to compel the depositions of three witnesses, and granted those branches of the cross motion of the defendants Lessing's, Inc., and Southland Restaurant Corporation which were pursuant to CPLR 3103 for a protective order precluding the depositions of those witnesses and pursuant to CPLR 3124 to compel the plaintiff Donald O'Brien to provide unrestricted medical authorizations for the release of medical records relating to his treatment prior to the date of the subject accident.

         ORDERED that the order is affirmed insofar as appealed from, with costs.

         A corporate entity has the right to designate the employee who will be deposed (see Conte v County of Nassau, 87 A.D.3d 559, 560; Giordano v New Rochelle Mun. Hous. Auth., 84 A.D.3d 729, 731; Nunez v Chase Manhattan Bank, 71 A.D.3d 967, 968). A party "seeking additional depositions has the burden of demonstrating '(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case'" (Gomez v State of New York, 106 A.D.3d 870, 872, quoting Zollner v City of New York, 204 A.D.2d 626, 627; see Conte v County of Nassau, 87 A.D.3d at 560; Giordano v New Rochelle Mun. Hous. Auth., 84 A.D.3d at 731; Spohn-Konen v Town of Brookhaven, 74 A.D.3d 1049, 1049). Here, the plaintiffs failed to sustain their burden of demonstrating that the general manager testifying on behalf of the defendants Lessing's, Inc., and Southland Restaurant Corporation (hereinafter together the defendants) had insufficient knowledge or was otherwise inadequate, and that there was a substantial likelihood that the individuals sought to be deposed possessed information which is material and necessary to the prosecution of the case. The Supreme Court, therefore, properly denied the plaintiffs' motion pursuant to CPLR 3124 to compel depositions, and granted that branch of the defendants' cross motion which was pursuant to CPLR 3103 for a protective order precluding those depositions (see Gomez v State of New York, 106 A.D.3d at 873; Conte v County of Nassau, 87 A.D.3d at 560; Spohn-Konen v Town of Brookhaven, 74 A.D.3d at 1049).

         "While physician-patient communications are privileged under CPLR 4504, '[a] litigant will be deemed to have waived the privilege when, in bringing or defending a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue'" (Gutierrez v Trillium USA, LLC, 111 A.D.3d 669, 672, quoting Dillenbeck v Hess, 73 N.Y.2d 278, 287). To this end, "'a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR (see CPLR 3121[a]) when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue'" (Gutierrez v Trillium USA, LLC, 111 A.D.3d at 672, quoting Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456-457; see Farrell v E.W. Howell Co., LLC, 103 A.D.3d 772, 773). "In addition, the defense is entitled to review records showing the nature and severity of the plaintiffs prior medical conditions [which] may have an impact upon the amount of damages, if any, recoverable for a claim of loss of enjoyment of life" (Montalto v Heckler, 113 A.D.3d 741');">113 A.D.3d 741 [internal quotation marks omitted]; see Vodoff v Mehmood, 92 A.D.3d 773; Amoroso v City of New York, 66 A.D.3d 618; Orlando v Richmond Precast, Inc., 53 A.D.3d 534, 535).

         Here, contrary to the plaintiffs' contention, they affirmatively placed the entire medical condition of the plaintiff Donald O'Brien (hereinafter the injured plaintiff) in controversy through the broad allegations in their bill of particulars (see Farrell v E.W. Howell Co., LLC, 103 A.D.3d at 773). Further, the plaintiffs expressed their intention to prove exacerbation of preexisting injuries at trial and claimed damages for loss of enjoyment of life. Accordingly, the Supreme Court properly granted that branch of the defendants' cross motion which was pursuant to CPLR 3124 to compel the injured plaintiff to provide them with authorizations for the release of medical records relating to his treatment for acoustic neuroma and back issues (see Montalto v Heckler, 113 A.D.3d at 742; Gutierrez v Trillium USA, LLC, 111 A.D.3d at 672; Vodoff v Mehmood, 92 A.D.3d at 773; Amoroso v City of New York, 66 A.D.3d at 618; Orlando v Richmond Precast, Inc., 53 A.D.3d at 535). Under the circumstances of this case, the ...


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