Bravo v. Vargas

• Decision Date: 08 January 2014
• Citation: 2014 N.Y. Slip Op. 00081,113 A.D.3d 577,978 N.Y.S.2d 313
• Parties: Rubisela BRAVO, respondent, v. Eric Mundo VARGAS, et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 577

978 N.Y.S.2d 313

2014 N.Y. Slip Op. 00081

Rubisela BRAVO, respondent,

v.Eric Mundo VARGAS, et al., appellants, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 8, 2014.

Brand, Glick & Brand, P.C., Garden City, N.Y. (Peter M. Khrinenko of counsel), for appellants.

Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser and Gabriel A. Arce–Yee of counsel), for respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the defendants Eric Mundo Vargas and Enterprise Rent–A–Car Company of Boston, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated September 22, 2011, as denied those branches of their motion which were to compel the plaintiff to provide authorizations for the release of certain records pertaining to her preexisting medical conditions, and to appear for a supplemental deposition and an independent medical examination.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by (1) deleting the provision thereof denying that branch of the motion of the defendants Eric Mundo Vargas and Enterprise Rent–A–Car Company of Boston, Inc., which was to compel the plaintiff to appear for a supplemental deposition on the issue of her most recent surgery, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof denying that branch of the motion of the defendants Eric Mundo Vargas and Enterprise Rent–A–Car Company of Boston, Inc., which was to compel the plaintiff to provide authorizations for the release of certain records pertaining to her preexisting medical conditions, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from; and it is further,

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

“[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 when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue” (Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456–457, 470 N.Y.S.2d 122, 458 N.E.2d 363 [citation omitted]; seeCPLR 3121[a]; O'Rourke v. Chew, 84 A.D.3d 1193, 1194, 923 N.Y.S.2d 875). Here, the plaintiff affirmatively placed her entire medical condition in controversy through the broad allegations of physical and mental injuries that were contained in her complaint and bill of particulars, and made during her deposition ( see O'Rourke v. Chew, 84 A.D.3d at 1194, 923 N.Y.S.2d 875; DeLouise v. S.K.I. Wholesale Beer Corp., 79 A.D.3d 1092, 1093, 913 N.Y.S.2d 774; Abdalla v. Mazl Taxi, Inc., 66 A.D.3d 803, 804, 887 N.Y.S.2d 250; Avila v. 106 Corona Realty Corp., 300 A.D.2d 266, 267, 750 N.Y.S.2d 764; St. Clare v. Cattani, 128 A.D.2d 766, 767, 513 N.Y.S.2d 250). Moreover, the nature and extent of her previous injuries and medical conditions are material and necessary to her claims of having sustained a serious injury within the meaning of Insurance Law § 5102(d), as well as any claims of loss of enjoyment of life ( see Cristiano v. York Hunter Servs., Inc., 99...