Schiavone v. Keyspan Energy Delivery NYC

• Decision Date: 15 November 2011
• Citation: 89 A.D.3d 916,933 N.Y.S.2d 310,2011 N.Y. Slip Op. 08340
• Parties: James SCHIAVONE, et al., respondents, v. KEYSPAN ENERGY DELIVERY NYC, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08340

89 A.D.3d 916

933 N.Y.S.2d 310

James SCHIAVONE, et al., respondents,

v.KEYSPAN ENERGY DELIVERY NYC, et al., appellants, et al., defendants.

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

Nov. 15, 2011.

Cullen and Dykman, LLP, Brooklyn, N.Y. (Richard A. Shannon of counsel), for appellants.

Pontisakos & Rossi, P.C., Roslyn, N.Y. (Elizabeth Mark Meyerson of counsel), for respondents.

MARK C. DILLON, J.P., RANDALL T. ENG, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, etc., the defendants Keyspan Energy Delivery NYC, Hallen Construction Co., Inc., and New York Paving, Inc., appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated May 27, 2010, which denied their motion to preclude the plaintiffs from offering evidence on the issue of damages or, in the alternative, to compel the plaintiff James Schiavone to provide authorizations for the release of certain medical records, and granted the plaintiffs' motion to compel the defendant Keyspan Energy Delivery NYC to produce Casey Giambrone for deposition and the defendant Hallen Construction Co., Inc., to produce Jimmy Koskol for deposition.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting the plaintiffs' motion to compel the defendant Keyspan Energy Delivery NYC to produce Casey Giambrone for deposition and the defendant Hallen Construction Co., Inc., to produce Jimmy Koskol for deposition, and substituting therefor a provision denying the plaintiffs' motion; as so modified, the order is affirmed, without costs or disbursements.

The Supreme Court providently exercised its discretion in denying the motion of the defendants Keyspan Energy Delivery NYC (hereinafter Keyspan), Hallen Construction Co., Inc. (hereinafter Hallen), and New York Paving, Inc. (hereinafter collectively the defendants), which was to preclude the plaintiffs from offering evidence on the issue of damages or, in the alternative, to compel the plaintiff James Schiavone (hereinafter the injured plaintiff) to provide authorizations for the release of certain medical records. Contrary to the defendants' contention, the injured plaintiff did not place his entire medical condition in controversy with broad allegations of physical injury and mental anguish in the bill of particulars ( see 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; Diamond v. Ross Orthopedic Group, P.C., 41 A.D.3d 768, 839 N.Y.S.2d 211; Avila v. 106 Corona Realty Corp., 300 A.D.2d 266, 267, 750 N.Y.S.2d 764). The bill of particulars alleged only specific injuries to the injured plaintiff's left knee, and he has provided authorizations for the release of the pertinent medical files ( cf. 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; DeLouise v. S.K.I. Wholesale Beer Corp., 79 A.D.3d at 1093, 913 N.Y.S.2d 774). The defendants' demands with respect to the injured plaintiff's entire medical history are patently overbroad and burdensome ( see Azznara v. Strauss, 81 A.D.3d 578, 579, 915 N.Y.S.2d 868; Bongiorno v. Livingston, 20 A.D.3d 379, 381, 799 N.Y.S.2d 98; Holness v. Chrysler Corp., 220 A.D.2d 721, 722, 633 N.Y.S.2d 986).

For the purposes of deposition, a corporate entity has the right to designate, in the first instance, the employee who shall be examined ( see Thristino v. County of Suffolk, 78 A.D.3d 927, 910 N.Y.S.2d 664; Nunez v....