Vodoff v. Mehmood

• Court: New York Supreme Court Appellate Division
• Citation: 938 N.Y.S.2d 472,2012 N.Y. Slip Op. 01244,92 A.D.3d 773
• Parties: Eduard VODOFF, respondent, v. Tahir MEHMOOD, et al., appellants.
• Decision Date: 14 February 2012

2012 N.Y. Slip Op. 01244
92 A.D.3d 773
938 N.Y.S.2d 472

Eduard VODOFF, respondent,
v.
Tahir MEHMOOD, et al., appellants.

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

Feb. 14, 2012.

Marjorie E. Bornes, New York, N.Y., for appellants.

Dinkes & Schwitzer, New York, N.Y. (Naomi Skura of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated August 11, 2011, which denied their motion to compel the plaintiff to provide authorizations for the release of certain medical records pertaining to the plaintiff's preexisting condition of diabetes.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the defendants' motion to compel the plaintiff to provide authorizations for the release of certain medical records pertaining to the plaintiff's preexisting condition of diabetes is granted.

A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue ( see CPLR 3121[a]; Dillenbeck v. Hess, 73 N.Y.2d 278, 539 N.Y.S.2d 707, 536 N.E.2d 1126; 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; Diamond v. Ross Orthopedic Group, P.C., 41 A.D.3d 768, 839 N.Y.S.2d 211). Further, CPLR 3101(a) requires full disclosure of all evidence material and necessary to the *473 prosecution or defense of an action, regardless of the burden of proof ( see Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430). Here, the defendants met their initial burden of showing that the nature and severity of the plaintiff's pre-existing medical condition is material and necessary to the issue of damages, if any, recoverable for a claimed loss of enjoyment of life due to his current injuries ( see Abdalla v. Mazl Taxi, Inc., 66 A.D.3d 803, 804, 887 N.Y.S.2d 250; Amoroso v. City of New York, 66 A.D.3d 618, 887 N.Y.S.2d 163; Orlando v. Richmond Precast, Inc., 53 A.D.3d 534, 861 N.Y.S.2d 765; Weber v. Ryder TRS, Inc., 49 A.D.3d 865, 854 N.Y.S.2d 480; Diamond v. Ross Orthopedic Group, P.C., 41 A.D.3d at 769, 839 N.Y.S.2d 211). In opposition, the plaintiff failed to establish that he did not suffer from a preexisting medical condition of diabetes....