Castagnazzi v. Schlecker

159 A.D.2d 533, 552 N.Y.S.2d 398, 1990 N.Y. App. Div. LEXIS 2731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1990
• Status: Published

Opinion

In an action to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Kings County (Bellard, J.), dated March 27, 1989, which granted the plaintiff’s motion to compel the defendant to provide a duplicate copy of hospital records he obtained pursuant to the authorizations of the plaintiff Eleanor Castagnazzi, upon, inter alia, payment by the plaintiffs of a reproduction fee of 25 cents per page plus $50.

Ordered that the order is affirmed, with costs.

The Supreme Court properly directed the defendant to provide to the plaintiffs a duplicate copy of any hospital records obtained as a result of the authorizations of the plaintiff Eleanor Castagnazzi (see, CPLR 3121 [a]; Tower v Chemical Bank, 140 AD2d 514, 516; Czekanski v Hanretta, 42 Misc 2d 115). The mere fact that the defendant made his demand for authorizations prior to any demand for a physical examination cannot excuse noncompliance with the statute (see, Tower v Chemical Bank, supra; Keays v Vanderheyden Hall, 43 Misc 2d 399). Moreover, in keeping with its broad discretion to set the terms and conditions of discovery (see, CPLR 3103 [a]; Nitz v Prudential-Bache Sec., 102 AD2d 914, 915), the Supreme Court fashioned an appropriate remedy by having the plaintiffs shoulder a reasonable cost of the duplication (see generally, Rosado v Mercedes-Benz of N. Am., 103 AD2d 395, 398; Close v Schaeffer, 116 Misc 2d 916). Hooper, J. P., Harwood, Balletta and Miller, JJ., concur.