Oh discovery, where art thou

Witherspoon v Surat Realty Corp., 2011 NY Slip Op 02380 (App. Div., 2nd 2011)

The Supreme Court properly denied that branch of the defendants' motion which was to strike the plaintiff's supplemental bill of particulars, including the particulars of the plaintiff's left shoulder surgery. Pursuant to CPLR 3043(b), a plaintiff may serve a supplemental bill of particulars containing "continuing special damages and disabilities" without leave of the court if it alleges "no new cause of action . . . or new injury." Where, as here, the plaintiff seeks to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars (see Tate v Colabello, 58 NY2d 84, 87; Maraviglia v Lokshina, 68 AD3d 1066, 1067; Shahid v New York City Health & Hosps. Corp., 47 AD3d 798, 800; Zenteno v Geils, 17 AD3d 457, 458), rather than an amended or new bill of particulars. Furthermore, there was no showing of prejudice to the defendants, as the supplemental bill of particulars was served more than 30 days prior to trial and the Supreme Court directed the parties to conduct further pretrial proceedings (see 22 NYCRR 202.21[d]; Maraviglia v Lokshina, 68 AD3d at 1067; Fortunato v Personal Woman's Care, P.C., 31 AD3d 370, 371).

The Supreme Court also properly denied that branch of the defendants' motion which was to vacate the note of issue and certificate of readiness. A motion to vacate the note of issue and certificate of readiness made more than 20 days after their service will be granted only where "a material fact in the certificate of readiness is incorrect" or upon "good cause shown" (22 NYCRR 202.21[e]; see Torres v Saint Vincents Catholic Med. Ctrs., 71 AD3d 873; Ferraro v North Babylon Union Free School Dist., 69 AD3d 559, 561). The defendants failed to satisfy these requirements (see Schenk v Maloney, 266 AD2d 199; Audiovox Corp. v Benyamini, 265 AD2d 135, 139; Stella v Ahmed, 223 AD2d 698).

Buxbaum v Castro, 2011 NY Slip Op 01967 (App. Div., 2nd 2011)

CPLR 3101(a) requires, in pertinent part, "full disclosure of all matter material and necessary in the prosecution or defense of an action." However, the principle of "full disclosure" does not give a party the right to uncontrolled and unfettered disclosure (Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531; see Peluso v Red Rose Rest., Inc., 78 AD3d 802, 803). The Supreme Court has broad discretion over the supervision of disclosure, and its determination will not be disturbed absent an improvident exercise of that discretion (see Foster v Herbert Slepoy Corp., 74 AD3d 1139, 1140; Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d 694, 695). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was to direct the defendant to permit him and/or his "authorized computer forensic experts" to "impound, clone and inspect" certain computer equipment, including hard drives and other digital data storage devices, possessed by the defendant (see Gilman & Ciocia, Inc. v Walsh, 45 AD3d at 531).

Muzio v Napolitano, 2011 NY Slip Op 01987 (App. Div., 2nd 2011)

The defendants in this medical malpractice action conducted an interview of the plaintiff's treating physician, a nonparty, without obtaining a valid authorization pursuant to the Health Insurance Portability and Accountability Act of 1996 (Pub L No 104-191, 110 Stat 1936 [1996]). Notwithstanding the fact that the plaintiff placed her medical condition in controversy, the defendants were required to obtain an authorization expressly permitting an interview with her treating physician prior to conducting the interview (see Arons v Jutkowitz, 9 NY3d 393; Porcelli v Northern Westchester Hosp. Ctr., 65 AD3d 176). 

Since any information obtained by the defendants from the interview was "improperly . . . obtained" (CPLR 3103[c]), the Supreme Court should have granted that branch of the plaintiff's pretrial motion which was pursuant to CPLR 3103(c) for a protective order precluding the defendants from calling her treating physician to testify at trial as an expert witness for the defense, and from introducing, at trial, the information obtained from the interview (see Straub v Yalamanchili, 58 AD3d 1050; Surgical Design Corp. v Correa, 21 AD3d 409; Keschecki v St. Vincent's Med. Ctr., 5 Misc 3d 539).

Wigand v Modlin, 2011 NY Slip Op 02654 (App. Div., 2nd 2011)

In this action to recover damages for medical malpractice and lack of informed consent, the defendant moved, on the eve of trial, inter alia, to direct the plaintiff to appear for an independent medical examination (hereinafter IME). Thereafter, the Supreme Court issued a written order dated April 16, 2009, which, among other things, directed the plaintiff to appear for the IME. The plaintiff then moved, in effect, for leave to reargue her opposition to that branch of the defendant's motion which was to direct her to appear for the IME. Upon reargument, the Supreme Court adhered to its prior determination. We reverse the order insofar as appealed from.

The Supreme Court may, in its discretion, grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see Owen v Lester, 79 AD3d 992; Audiovox Corp. v Benyamini, 265 AD2d 135, 140). However, the Supreme Court erred in adhering to its determination granting that branch of the defendant's motion, made on the eve of trial, which was to direct the plaintiff to appear for an IME. The defendant failed to offer evidence of unusual or unanticipated circumstances that developed subsequent to the filing of the note of issue and certificate of readiness to justify relieving him of the consequences of his failure to conduct a timely medical examination of the plaintiff (see Owen v Lester, 79 AD3d 992; Manzo v City of New York, 62 AD3d 964, 965; Audiovox Corp. v Benyamini, 265 AD2d at 138).

 

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