Gaglia v. Wells
| Decision Date | 01 July 1985 |
| Citation | 490 N.Y.S.2d 829,112 A.D.2d 138 |
| Parties | Maria GAGLIA, Appellant, v. Ernest E. WELLS, Jr., Respondent, et al., Defendant (and another title). |
| Court | New York Supreme Court — Appellate Division |
Katz, Katz & Brand, New York City (Geraldine J. Gould, New York City, of counsel), for appellant.
Pizzitola & Inzerillo, Lake Ronkonkoma (Robert F. Saunderson on the brief), for respondent.
Before THOMPSON, J.P., and BROWN, WEINSTEIN and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), dated February 28, 1984, as denied those branches of her motion which sought an order directing defendant Wells to (1) furnish her with authorizations to obtain certain hospital and medical records, (2) provide her with a copy of a statement made by defendant Wells to his insurer, and (3) submit to a physical examination.
Order modified by deleting the fourth decretal paragraph thereof denying that branch of plaintiff's motion which sought to obtain a copy of a statement made by defendant Wells to his insurer and substituting therefor a provision granting that branch of plaintiff's motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements.
Defendant Wells' physical condition was not placed in controversy by plaintiff's unsupported allegations that Wells was intoxicated at the time of the accident (cf. Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857; Turner v. Town of Amherst, 62 Misc.2d 257, 308 N.Y.S.2d 547). Neither was it placed in controversy by the testimony of defendant Wells at an examination before trial that he had no recollection of the circumstances surrounding the accident. Presumably he is not asserting his loss of memory as a basis for absolving himself of liability; he is simply testifying as to his lack of recollection of the facts of the accident. Therefore, he may not be charged with putting his physical 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, we affirm Special Term's denial of those branches of her motion which sought to obtain certain of his hospital and medical records and to conduct a physical...
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