McConnell v. Santana

30 A.D.3d 481, 816 N.Y.S.2d 372

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 2006
• Status: Published

Opinion

The Supreme Court erred in granting that branch of the plaintiffs motion which was to compel disclosure of item No. 1 of the notice dated July 28, 2003. Under item No. 1, the plaintiff sought authorization to obtain the medical records of the defendant Hiram Santana from the hospital where he was treated immediately after the accident. The plaintiff failed to demonstrate that Santana’s mental or physical condition at the time of the accident was “in controversy” (CPLR 3121 [a]; see Dillenbeck v Hess, 73 NY2d 278, 286-287 [1989]; Koump v Smith, 25 NY2d 287, 300 [1969]; Lombardi v Hall, 5 AD3d 739, 739-740 [2004]). Santana’s deposition did not reveal that he suffered from any mental or physical disability at the time of the accident, and there is no evidence that the defendants affirmatively asserted the condition either by way of counterclaim or to excuse the conduct complained of by the plaintiff (see Gandy v Larkins, 165 AD2d 862 [1990]; Cannistra v County of Putnam, 139 AD2d 479 [1988]; Gaglia v Wells, 112 AD2d 138 [1985] ).

Furthermore, the Supreme Court erred in directing the defendants to provide records of repairs and service of the bus up to the time of repairs as a result of the accident. Evidence of repairs and remedial measures subsequent to the accident is not discoverable or admissible in a case based on negligence (see Orlando v City of New York, 306 AD2d 453 [2003]; Watson v FHE Servs., 257 AD2d 618 [1999]; Klatz v Armor El. Co., 93 AD2d 633, 637 [1983]).

The defendants’ remaining contentions are without merit (see CPLR 3101 [d]; 3116 [c]; Perfido v Messina, 125 AD2d 654 [1986]). Florio, J.P, Santucci, Mastro, Rivera and Covello, JJ., concur.