Diako v. Yunga

2017 NY Slip Op 1649, 148 A.D.3d 438, 48 N.Y.S.3d 403

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 2017
• Docket: 3265N 309612/11
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered October 7, 2016, which granted plaintiff’s motion to restore the case to the trial calendar and denied defendants’ cross motion to compel plaintiff to comply with all outstanding discovery demands, affirmed, without costs.

The motion court providently exercised its discretion in granting plaintiff’s motion and denying defendants’ cross motion (see Gumbs v Flushing Town Ctr. III, L.P., 114 AD3d 573, 574 [1st Dept 2014]). Plaintiff’s waiver of his physician-patient privilege is limited to those conditions that he affirmatively placed in controversy (id.). Further, the hospital records defendants seek are not relevant, since plaintiff averred that he did not receive any medical care, treatment, or diagnostic testing at the hospital before his accident for any injuries he sustained to his body in the accident (Elmore v 2720 Concourse Assoc., L.P., 50 AD3d 493, 493 [1st Dept 2008]). The motion court also properly denied defendants’ request for plaintiff’s employment records from his previous employer, where he worked approximately 10 years before the accident, since such a request is “overbroad and unduly burdensome” (Tomaino v 209 E. 84 St. Corp., 68 AD3d 527, 530 [1st Dept 2009]).

We have considered defendants’ remaining contentions and find them unavailing.

Concur — Andrias, J.P., Feinman and Gesmer, JJ.