| Rega v Avon Prods., Inc. |
| 2008 NY Slip Op 02028 [49 AD3d 329] |
| March 11, 2008 |
| Appellate Division, First Department |
| Anthony Rega, Appellant, v Avon Products, Inc., et al.,Respondents, et al., Defendant. Avon Products, Inc., et al., Third-Party Plaintiffs-Respondents, vPitney Bowes, Inc., et al., Third-Party Defendants-Respondents, et al., Third-PartyDefendants. |
—[*1] Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for AvonProducts, Inc. and Avon Capital Corporation, respondents. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Richard Reiter ofcounsel), for Pitney Bowes Inc., Pitney Bowes Management Services, Inc. and ServiceIntegration Group, L.P., respondents.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered November 17,2006, which, to the extent appealed from as limited by the briefs, granted the motions by theAvon defendants and the Pitney Bowes third-party defendants for discovery, and deniedplaintiff's motion for a protective order, unanimously affirmed, without costs.
CPLR 3101 (a) calls for "full disclosure of all matter material and necessary in theprosecution or defense of an action, regardless of the burden of proof." Evidence is "material" ifsought "in good faith for possible use as evidence-in-chief or in rebuttal or forcross-examination" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 407 [1968][quoting other authority]). Furthermore, waiver of a physician-patient privilege occurs when aparty voluntarily and affirmatively inserts the issue of a physical or mental defect or conditioninto the litigation by [*2]way of testimony or written submission(see Avila v 106 Corona Realty Corp., 300 AD2d 266 [2002]).
Here, the evidence sought by Avon and Pitney Bowes regarding plaintiff's prior andsubsequent injuries was material for defense of the action. Plaintiff voluntarily placed hisphysical condition in issue by averring in his bill of particulars that it was aggravated orexacerbated by his injuries in this action, and that he was permanently, albeit partially, disabledas a result. In light of these averments, both Avon and Pitney Bowes are entitled to discovery todetermine the extent, if any, to which the plaintiff's claimed injuries and damages are attributableto accidents other than the one at issue here (see Caplow v Otis El. Co., 176 AD2d 199[1991]; see also Vanalst v City of New York, 276 AD2d 789 [2000]; cf. Noble vAckerman, 216 AD2d 140 [1995]). Since plaintiff's prior injuries may even have impactedon his ability to work after this most recent accident, Avon and Pitney Bowes should be entitledto discovery on that issue as well. Concur—Tom, J.P., Buckley, Sweeny and Moskowitz,JJ.