Disclosure

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 ). 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 ). 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 ). 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. ). 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 ). 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 ).

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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.

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