Fisher v. Fossett
| Citation | 45 Misc.2d 757,257 N.Y.S.2d 821 |
| Parties | Howard A. FISHER and Sadie L. Fisher, Plaintiffs, v. George E. FOSSETT and Patricia Ann Fossett, his wife, Defendants. |
| Decision Date | 08 January 1965 |
| Court | United States State Supreme Court (New York) |
Pritchard, Kinney & Buch, Buffalo, for plaintiffs.
Gleason & O'Connor, Buffalo, for defendants.
Plaintiffs move for an order compelling defendants to comply with the notice of the plaintiffs requiring defendants to furnish 'duly executed and acknowledged written authorizations permitting all parties to obtain and make copies of the records of Kenmore Mercy and any other hospital relating to the mental or physical condition of the defendant Patricia Ann Fossett' (CPLR 3121(a).
Defendants cross-moved for a protective order pursuant to CPLR 3122 vacating the plaintiffs' notice upon the grounds that 'the material is privileged and would cause unreasonable annoyance, harassment, disadvantage and prejudice to the defendants and that said reports are unnecessary and immaterial and not relevant to the issue'.
The action is for property damage based on a claim of the negligent operation of an automobile owned by the defendant George Fossett and operated by the defendant Patricia Ann Fossett. The car driven by Mrs. Fossett struck the front of the plaintiffs' home causing the damage sued for in this action.
It is contention of defendants that since there are no allegations in the complaint with reference to the mental or physical condition of the defendants that plaintiffs are not entitled to examine the hospital records.
The MV-104 signed and filed by the defendant Patricia Ann Fossett contained the statement that On the examination before trial the defendant Patricia Ann Fossett indicated by her answers that her claim was, that as she approached the intersection near plaintiffs' home she remembered nothing after putting her foot on the brake until she was in the Kenmore Mercy Hospital where she was taken after the accident.
The right to hospital records contained in CPLR 3121(a) is not limited to actions in which the plaintiffs seek recovery for physical injuries. All that the section requires is that the mental or physical condition of a party be in controversy. The facts in this case indicate that the principal, if indeed not the only controversy, will be the physical condition of the defendant Patricia Ann Fossett and whether or not her physical condition did or did not...
To continue reading
Request your trial
-
De Castro v. City of New York
...action where his physical condition is in controversy, he exposes himself to the disclosure provisions of CPLR 3121 (Fisher v. Fossett, 45 Misc.2d 757, 257 N.Y.S.2d 821). CPLR 3101 provides that there shall be full disclosure of all evidence material and necessary in the prosecution and def......
-
Gaglia v. Wells
...condition in controversy (cf. Koump v. Smith, supra; Estabrook & Co. v. Masiello, 75 Misc.2d 784, 348 N.Y.S.2d 879; Fisher v. Fossett, 45 Misc.2d 757, 257 N.Y.S.2d 821). Because plaintiff has failed to clearly and unequivocally show that defendant Wells' physical condition is in controversy......
-
Koump v. Smith
...Castro v. City of New York, 54 Misc.2d 1007, 284 N.Y.S.2d 281; Chester v. Zima, 41 Misc.2d 676, 246 N.Y.S.2d 144). In Fisher v. Fossett, 45 Misc.2d 757, 257 N.Y.S.2d 821 the same Judge who decided Chester v. Zima, Supra carried the rationale of that case a step further and held that the doc......
-
Turner v. Town of Amherst
...and may reduce the rarity of such orders. The application of CPLR 3121 to a defendant was unequivocally stated in Fisher v. Fossett, 45 Misc.2d 757, 257 N.Y.S.2d 821, an action for property damage. The Court said: 'The right to * * * CPLR 3121 (subd. a) is not limited to actions in which th......