Castagnazzi v. Schlecker
| Decision Date | 12 March 1990 |
| Citation | 159 A.D.2d 533,552 N.Y.S.2d 398 |
| Parties | Eleanor CASTAGNAZZI, et al., Respondents, v. Austin A. SCHLECKER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Marian Polovy, New York City (Marian Polovy, of counsel), for appellant.
Rupert & Gross, Brooklyn (Soledad Rubert, of counsel), for respondents.
Before KOOPER, J.P., and HARWOOD, BALLETTA and MILLER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Kings County (Bellard, J.), dated March 27, 1989, which granted the plaintiff's motion to compel the defendant to provide a duplicate copy of hospital records he obtained pursuant to the authorizations of the plaintiff Eleanor Castagnazzi, upon, inter alia, payment by the plaintiffs of a reproduction fee of $.25 per page plus $50.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly directed the defendant to provide to the plaintiffs a duplicate copy of any hospital records obtained as a result of the authorizations of the plaintiff Eleanor Castagnazzi (see, CPLR 3121[a]; Tower v. Chemical Bank, 140 A.D.2d 514, 516, 528 N.Y.S.2d 413; Czekanski v. Hanretta, 42 Misc.2d 115, 247 N.Y.S.2d 352). The mere fact that the defendant made his demand for authorizations prior to any demand for a physical examination cannot excuse noncompliance with the statute (see, Tower v. Chemical Bank, supra, Keays v. Vanderheyden Hall, 43 Misc.2d 399, 251 N.Y.S.2d 41). Moreover, in keeping with its broad discretion to set the terms and conditions of discovery (see, CPLR 3103[a]; Nitz v. Prudential-Bache Sec., 102 A.D.2d 914, 915, 477 N.Y.S.2d 479), the Supreme Court fashioned an appropriate remedy by having the plaintiffs shoulder a reasonable cost of the duplication (see generally, Rosado v. Mercedes-Benz of North Am., 103 A.D.2d 395, 398, 480 N.Y.S.2d 124; Close v. Schaeffer, 116 Misc.2d 916, 456 N.Y.S.2d 928).
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...addressed in Connors , Which Party Pays the Costs of Document Disclosure, 29 Pace L. Rev. 441 (2009).4 In Castagnazzi v. Schlecker , 159 A.D.2d 533, 552 N.Y.S.2d 398 (2d Dept. 1990) the court acknowledged the "broad discretion to set the terms and conditions of discovery". Id. 534, 552 N.Y.......
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...and reports of treating and examining physicians acquired by defendant through the authorizations (see, Castagnazzi v. Schlecker, 159 A.D.2d 533, 533-534, 552 N.Y.S.2d 398; see also, Tower v. Chemical Bank, 140 A.D.2d 514, 515-516, 528 N.Y.S.2d 413). The authorizations relate to disclosure ......