Opinion
2015-02-13
Kenneth M. SCHLAU, Jr., Plaintiff–Respondent, v. CITY OF BUFFALO, Buffalo Urban Renewal Agency, Western New York Arena, LLC, HSBC Arena, ADT Security Services, Inc. (ADT), Defendants–Appellants, et al., Defendants. (Appeal No. 1.).
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Gregory J. Dell of Counsel), for Defendants–Appellants. Paul William Beltz, P.C., Buffalo (Debra A. Norton of Counsel), for Plaintiff–Respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Gregory J. Dell of Counsel), for Defendants–Appellants. Paul William Beltz, P.C., Buffalo (Debra A. Norton of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and SCONIERS, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he touched the handle of an electronically secured door at HSBC Arena and sustained an electric shock. These consolidated appeals concern discovery disputes that have arisen between plaintiff and certain defendants.
In appeal No. 1, defendants City of Buffalo, Buffalo Urban Renewal Agency, Western New York Arena, LLC, HSBC Arena, and ADT Security Services, Inc. (ADT) (collectively, Arena defendants) appeal from an order that, inter alia, granted plaintiff's motion to vacate their CPLR 3216(b)(3) notice, permitted discovery to continue beyond the 90–day period set forth in the notice, and denied their cross motion seeking a scheduling order. “Supreme Court is vested with broad discretion in supervising disclosure” ( Blumenthal v. Tops Friendly Mkts., 182 A.D.2d 1105, 1106, 586 N.Y.S.2d 771), and we conclude that it did not abuse its discretion in granting plaintiff's motion to vacate the CPLR 3216(b)(3) notice. Discovery was not complete, and the Arena defendants continued to seek disclosure after serving the notice, which “was sufficient reason in and of itself to” vacate the notice (Gonzalez v. Deutsch Co., 193 A.D.2d 449, 449, 597 N.Y.S.2d 682; see Little v. Long Is. Jewish Med. Ctr., 231 A.D.2d 496, 498, 647 N.Y.S.2d 258). In addition, the court acted within its discretion in scheduling its calendar and setting timetables for discovery when it denied the Arena defendants' cross motion for a scheduling order ( see Matter of Rattner v. Planning Commn. of Vil. of Pleasantville, 156 A.D.2d 521, 528, 548 N.Y.S.2d 943, appeal dismissed75 N.Y.2d 897, 554 N.Y.S.2d 831, 553 N.E.2d 1341). The court also properly exercised its discretion in awarding costs on the motion to plaintiff ( see Greenspan v. Rockefeller Ctr. Mgt. Corp., 268 A.D.2d 236, 237, 700 N.Y.S.2d 687; American Auto. Plan v. Corcoran, 166 A.D.2d 215, 215, 560 N.Y.S.2d 435).
Contrary to the contention of the Arena defendants in appeal No. 2, we conclude that the court properly denied their motion seeking to limit further disclosure or, alternatively, the appointment of a referee to supervise further disclosure ( see Kogan v. Royal Indem. Co., 179 A.D.2d 399, 399, 577 N.Y.S.2d 849). We note that the court was without authority to appoint as a referee the private attorney proposed by the Arena defendants absent plaintiff's consent ( see Ploski v. Riverwood Owners Corp., 255 A.D.2d 24, 28, 688 N.Y.S.2d 627).
We agree with the Arena defendants and defendant U. & S. Services, Inc. (U. & S.) in appeal No. 3, however, that the court erred in denying in their entirety their respective motions seeking complete disclosure of plaintiff's unredacted medical records. Plaintiff waived the physician-patient privilege by affirmatively placing his medical and psychological condition in controversy, and he has disclosed all of his postaccident medical records ( see Goetchius v. Spavento, 84 A.D.3d 1712, 1713, 922 N.Y.S.2d 905). With respect to plaintiff's preaccident medical records, the waiver of the physician-patient privilege extends to the same body parts or conditions that are at issue in the action ( see Geraci v. National Fuel Gas Distrib. Corp., 255 A.D.2d 945, 946, 680 N.Y.S.2d 776), but not to “ ‘information involving unrelated illnesses and treatments' ” (Carter v. Fantauzzo, 256 A.D.2d 1189, 1190, 684 N.Y.S.2d 384). Upon our review of the disputed medical records, we conclude that the court properly denied the motions insofar as they sought to compel production of plaintiff's hospital and pediatric medical records dated on or before March 19, 1997, inasmuch as those records, in the context of the action herein, are not material and necessary to the defense ( see Chervin v. Macura, 28 A.D.3d 600, 601, 813 N.Y.S.2d 746), nor are they reasonably likely to lead to relevant evidence ( see DeStrange v. Lind, 277 A.D.2d 344, 345, 716 N.Y.S.2d 105). We further conclude, however, that given plaintiff's broad allegations of injury, disability, and loss of enjoyment of life, the court abused its discretion in denying the motions of the Arena defendants and U. & S. with respect to plaintiff's hospital and pediatric medical records dated on or after March 20, 1997 ( see Boyea v. Benz, 96 A.D.3d 1558, 1560, 946 N.Y.S.2d 757). We therefore modify the order in appeal No. 3 accordingly.
We dismiss the appeals from the order in appeal No. 4. The motions of the Arena defendants and U. & S., although denominated motions seeking leave to renew and to reargue, sought leave to reargue only, and the court's order denying those motions is not appealable ( see D & A Constr., Inc. v. New York City Hous. Auth., 105 A.D.3d 464, 465, 963 N.Y.S.2d 172; Coccia v. Liotti, 70 A.D.3d 747, 759, 896 N.Y.S.2d 90, lv. dismissed15 N.Y.3d 767, 906 N.Y.S.2d 811, 933 N.E.2d 210).
We also dismiss the appeals from the order in appeal No. 5. The Arena defendants challenge only that part of the order reserving decision on plaintiff's request for sanctions, and that part of the order is not appealable ( see Matter of Trader v. State of New York, 277 A.D.2d 978, 978, 716 N.Y.S.2d 626). U. & S. challenges the order only insofar as it directs U. & S. to submit an affirmation concerning the medical records in its possession. U. & S. has complied with that directive, thus rendering its appeal moot ( see Lombardo v. New York Univ. Med. Ctr., 232 A.D.2d 459, 460, 648 N.Y.S.2d 658).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.