Amoroso v. City of New York

Decision Date06 October 2009
Docket Number2008-08690.
Citation66 A.D.3d 618,887 N.Y.S.2d 163,2009 NY Slip Op 7212
PartiesBERNARD AMOROSO, Respondent, v. CITY OF NEW YORK et al., Defendants, and PETROCELLI ELECTRIC CO., INC., Appellant. (And a Third-Party Action.)
CourtNew York Supreme Court — Appellate Division

Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, and those branches of the appellant's motion which were to compel the plaintiff to provide authorizations for the release of his medical records pertaining to his preexisting kidney, cardiac, and diabetes conditions, and to vacate the note of issue and certificate of readiness, are granted.

Since the nature and severity of the plaintiff's prior medical conditions may have an impact upon the amount of damages, if any, recoverable for a claim of loss of enjoyment of life, the records regarding those preexisting medical conditions are material and necessary to the defense (see Orlando v Richmond Precast, Inc., 53 AD3d 534 [2008]; Diamond v Ross Orthopedic Group, P.C., 41 AD3d 768, 769 [2007]; Vanalst v City of New York, 276 AD2d 789 [2000]). Accordingly, that branch of the appellant's motion which was to compel the plaintiff to produce authorizations for the release of his medical records pertaining to his preexisting kidney, cardiac, and diabetic conditions should have been granted.

The plaintiff's certificate of readiness incorrectly stated that all pretrial discovery, including physical examinations, had been completed. As this was a misstatement of a material fact, that branch of the appellant's motion which was to vacate the note of issue and certificate of readiness should have been granted (see 22 NYCRR 202.21 [e]; Brown v Astoria Fed. Sav., 51 AD3d 961, 962 [2008]; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497 [2002]; Drapaniotis v 36-08 33rd St. Corp., 288 AD2d 254 [2001]).

DILLON, J.P., DICKERSON, BELEN an...

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  • O'Brien v. Vill. of Babylon
    • United States
    • New York Supreme Court — Appellate Division
    • August 2, 2017
    ...N.Y.S.2d 891 [internal quotation marks omitted]; see Vodoff v. Mehmood, 92 A.D.3d 773, 938 N.Y.S.2d 472 ; Amoroso v. City of New York, 66 A.D.3d 618, 887 N.Y.S.2d 163 ; Orlando v. Richmond Precast, Inc., 53 A.D.3d 534, 535, 861 N.Y.S.2d 765 ). Here, contrary to the plaintiffs' contention, t......
  • Clancy v. Silverstein Props., Inc.
    • United States
    • New York Supreme Court
    • April 2, 2012
    ...Tishman's motion (Seq. No. 04) to strike the Note of Issue pursuant to § 202.21(e) is hereby DENIED. Cf. Amoroso v. City of New York, 66 A.D.3d 618, 887 N.Y.S.2d 163 (2d Dept. 2009). The parties' remaining contentions have been considered and do not warrant discussion. In conclusion, defend......
  • Moreira v. Travel
    • United States
    • New York Supreme Court — Appellate Division
    • May 22, 2013
    ...disclosure of those records ( see M.C. v. Sylvia Marsh Equities, Inc., 103 A.D.3d 676, 959 N.Y.S.2d 280;Amoroso v. City of New York, 66 A.D.3d 618, 887 N.Y.S.2d 163;Rothstein v. Huh, 60 A.D.3d 839, 875 N.Y.S.2d 250;Diamond v. Ross Orthopedic Group, P.C., 41 A.D.3d 768, 768–769, 839 N.Y.S.2d...
  • Dilorenzo v. Toledano
    • United States
    • New York Supreme Court
    • March 11, 2019
    ...741, 978 N.Y.S.2d 891 (2d Dept. 2014); Vodoff v. Mehmood, 92 A.D.3d 773, 938 N.Y.S.2d 472 (2d Dept. 2012); Amoroso v. City of New York, 66 A.D.3d 618, 887 N.Y.S.2d 163 (2d Dept. 2009). The Court notes that, in the instant matter, the controlling authority is the Second Department. Furthermo......
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