| Premo v Rosa |
| 2012 NY Slip Op 01536 [93 AD3d 919] |
| March 1, 2012 |
| Appellate Division, Third Department |
| Cynthia Premo et al., Respondents, v Donna Rosa et al.,Appellants. |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (James W. Shuttleworth of counsel), forrespondents.
Egan Jr., J. Appeals (1) from an order of the Supreme Court (Sherman, J.), enteredNovember 17, 2010 in Tompkins County, which, among other things, granted plaintiffs' motionfor reconsideration, and (2) from an order of said court, entered March 1, 2011, which denieddefendants' motion to renew.
Plaintiff Cynthia Premo and her husband, derivatively, commenced this action seeking torecover for personal injuries allegedly sustained in January 2003 when the vehicle in whichPremo was a passenger was struck from behind by a vehicle owned by defendant Donna Rosaand operated by defendant Carlos Garcia in the Town of Ithaca, Tompkins County. According toplaintiffs, Premo sustained various injuries including, insofar as is relevant here, bilateral carpaltunnel syndrome. Following joinder of issue and discovery, defendants moved to compelplaintiffs to disclose, among other things, additional information and medical authorizationsrelative to treatment that Premo previously received for carpal tunnelsyndrome—specifically, surgery that Premo underwent on her right wrist in or about 1986.Ultimately, in July 2010, Supreme Court issued an amended order directing plaintiffs to provideauthorizations for all of Premo's medical records maintained by her treating physician andCayuga Medical Center—the facility where Premo believed her prior surgery tookplace—during a specified time period and granted defendants a conditional order ofpreclusion. Although the additional medical authorizations were provided, the documents weretendered outside the 30-day compliance [*2]window establishedby Supreme Court and, as a result, the court precluded plaintiffs from introducing evidence ofPremo's claimed bilateral carpal tunnel injuries at trial.
Plaintiffs thereafter moved to renew and/or reargue defendants' motion to compel and, byorder entered November 17, 2010, Supreme Court granted plaintiffs' motion and vacated theorder of preclusion. Following additional discovery, defendants moved to renew and vacateSupreme Court's November 2010 order contending, in essence, that plaintiffs refused toaccurately identify the facility at which Premo's prior surgery occurred. By order entered March1, 2011, Supreme Court denied defendants' motion, and these appeals by defendants ensued.
We affirm. As we recently reiterated, "a trial court has broad discretionary power incontrolling discovery and disclosure, and only a clear abuse of discretion will prompt appellateaction" (Cochran v Cayuga Med. Ctr. AtIthaca, 90 AD3d 1227, 1227 [2011] [internal quotation marks and citation omitted]).The same holds true for a trial court's decision to grant or deny a motion to renew; generally,absent an abuse of discretion, we will not intervene (see VanZandt v VanZandt, 88 AD3d 1232, 1233 [2011]; M & R Ginsburg, LLC v Orange CanyonDev. Co., LLC, 84 AD3d 1470, 1472 [2011]; Kahn v Levy, 52 AD3d 928, 929 [2008]).
To prevail on their motion to renew, plaintiffs were required to provide both newlydiscovered evidence—sufficient to change Supreme Court's priordetermination—and a reasonable justification for not tendering such evidence at an earlierdate (see Rowe v NYCPD, 85AD3d 1001, 1003 [2011]; M & R Ginsburg, LLC v Orange Canyon Dev. Co., LLC,84 AD3d at 1472; Alexy v Stein, 16AD3d 989, 990-991 [2005], lv dismissed and denied 5 NY3d 755 [2005]). Here, aninvestigator for plaintiffs' counsel averred that his recent search of the relevant medical facilitiesrevealed that the records sought by defendants no longer existed due to the passage of time.Specifically, the investigator indicated that he was advised by medical records personnel thatCayuga Medical Center—where Premo believed her surgery took place in or about1986—could only provide records dating back 10 years and that Cayuga NeurologicalServices—where Premo apparently was treated for her carpal tunnel syndrome—hadno records for Premo prior to 2003. As for the delay in tendering such information and/orcomplying with Supreme Court's prior directives, Supreme Court accepted counsel's explanationof law office failure, which apparently was occasioned by counsel's vacation absence, andconcluded that plaintiffs were not intentionally hiding relevant medical information fromdefendants but, rather, had "exhausted all reasonable avenues of providing [such] information."Inasmuch as the requested authorizations were served shortly after the deadline set forth in theorder of preclusion (cf. Shrader v Monforte, 212 AD2d 874, 874 [1995]) and givenSupreme Court's implicit finding that plaintiffs diligently attempted to unearth the sought-afterrecords (cf. De Cicco vLongendyke, 37 AD3d 934, 935 [2007]), we cannot say that Supreme Court abused itsdiscretion in granting plaintiffs' motion to renew.
We reach a similar conclusion regarding the denial of defendants' motion to renew.Defendants argued that because their further investigation—as documented in therecord—revealed that no one bearing Premo's current married name[FN*] had any surgery whatsoever at Cayuga Medical Center between 1982 and 1991, plaintiffsnecessarily failed to accurately disclose the site of Premo's prior carpal tunnel surgery and, hence,were in violation of Supreme [*3]Court's prior directive. SupremeCourt, however, found that defendants' submissions were insufficient to establish that plaintiffswere "intentionally hiding information relative to this prior surgical procedure," and we discernno basis upon which to disturb Supreme Court's sound decision in this regard.
Mercure, A.P.J., Spain, Kavanagh and Stein, JJ., concur. Ordered that the orders areaffirmed, with costs.
Footnote *: It is unclear whether suchrecords were searched using either Premo's single or previous married name.