Gumbs v Flushing Town Ctr. III, L.P., 2014 NY Slip Op 01267 (2d Dept. 2014)

“Discovery determinations rest with the sound discretion of the motion court (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]). This Court is nonetheless vested with a corresponding power to substitute its own discretion for that of the motion court (id.). Notwithstanding our own discretion, “deference is afforded to the trial court’s discretionary determinations regarding disclosure” (Don Buchwald & Assoc. v Marber-Rich, 305 AD2d 338, 338 [1st Dept 2003][internal quotation marks omitted]). Unlike the dissent, we find no abuse of the court’s discretion given the paucity of support for the motion in the first instance. Specifically, defendants’ argument regarding the relevance of Gumbs’s medical history as set forth in his deposition was improperly made for the first time in their reply papers (see e.g. [*2]Ambac Assur. Corp. v DLJ Mtge. Capital, Inc., 92 AD3d 451, 452 [1st Dept 2012]). The purpose of reply papers “is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion” (id. [internal quotation marks omitted]). This impropriety deprived plaintiffs of an opportunity to respond to the argument. Accordingly, the denial of defendants’ motion was reasonable and supported by law.

We, otherwise, find no occasion to substitute our own discretion for that of the motion court. Gumbs’s waiver of his physician-patient privilege is limited in scope to “those conditions affirmatively placed in controversy” (Felix v Lawrence Hosp. Ctr., 100 AD3d 470, 471 [1st Dept 2012]). Gumbs did not place his entire medical condition in controversy by suing to recover damages for orthopedic injuries (see e.g. Schiavone v Keyspan Energy Delivery NYC, 89 AD3d 916, 916-917 [2d Dept 2011]).


The dissent found noteworthy.  This was the rule I always learned as Justice Gische stated it:

“Defendants’ motion squarely put before the court plaintiff’s verified complaint and supplemental bills of particulars which expressly specified that plaintiff’s demand for monetary damages included loss of future earnings and loss of enjoyment of life based upon the permanency of his injuries. These sworn statements were sufficient to show that plaintiff had put his overall physical condition at issue in this action. The absence of the deposition transcript detailing plaintiff’s general physical condition until defendants’ reply papers did not warrant denial of defendants’ motion.”

This was a 3-2 and I am sure someone will grant Defendant leave to appeal to the Court of Appeals.  The case looks like a 7 figure dispute.

Amendment of bill of particulars on the eve of trial is allowed

Finocchiaro v Wall St. Mail Pk-Up Serv., Inc., 2010 NY Slip Op 51255(U)(App. Term 2d Dept. 2010)

I am including this case today, because the Appellate Term (see the bold below) has shared with us something that might have come from a spy novel: “While leave to amend a bill of particulars is ordinarily freely granted in the absence of prejudice and surprise, when leave to amend is sought on the eve of trial, judicial discretion should be exercised in a discreet, circumspect, prudent and cautious manner (see Kyong Hi Wohn v County of Suffolk, 237 AD2d 412 [1997]).”