| Logan v Roman |
| 2009 NY Slip Op 00509 [58 AD3d 810] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Tonya Logan, Plaintiff, and Bryan Cambridge,Appellant, v Jeannette Roman et al., Respondents. |
—[*1] Boeggeman, George & Corde, P.C., White Plains, N.Y. (Robert S. Ondrovic and CynthiaDolan of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff Bryan Cambridge appealsfrom a judgment of the Supreme Court, Westchester County (Liebowitz, J.), entered July 10,2007, which, upon granting the defendants' motion to preclude the videotaped testimony of histreating physician and, upon preclusion, to dismiss the complaint insofar as asserted by him, is infavor of the defendant and against him dismissing the complaint insofar as asserted by him.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion, thecomplaint insofar as asserted by the plaintiff Bryan Cambridge is reinstated, the defendants'motion is denied, and the matter is remitted to the Supreme Court, Westchester County, for atrial, with costs to abide the event.
Under the circumstances, the Supreme Court improvidently exercised its discretion inprecluding the plaintiff Bryan Cambridge (hereinafter the plaintiff) from offering videotaped trialtestimony of his treating physician, Dr. William Walsh, concerning his pre-existing right hiparthritis and its aggravation, which allegedly was caused by a motor vehicle accident on May 9,2002. Since Dr. Walsh was the plaintiff's treating physician, he should have been permitted totestify at trial notwithstanding any failure or deficiency in providing disclosure pursuant toCPLR 3101 (d) (1) (i), as that provision does not apply to treating physicians (see Butler v Grimes, 40 AD3d569, 570 [2007]; Hunt v Ryzman, 292 AD2d 345 [2002]). Dr. Walsh could testify tothe cause of the injuries even if he had expressed no opinion regarding causation in hispreviously exchanged medical report (see Overeem v Neuhoff, 254 AD2d 398 [1998]).[*2]
In any event, the defendants were not surprised orprejudiced by the videotaped testimony of Dr. Walsh, which included an opinion on causationwhich was not set forth in his previously exchanged medical report (see 22 NYCRR202.17 [h]). The defendants' examining physician had issued a report more than two years beforethe trial which concluded that the plaintiff's right hip arthritis was pre-existing and was not"aggravated, accentuated, created, or rendered symptomatic" as a result of the motor vehicleaccident. This report also contained an admission by the plaintiff that his right hip arthritis waspre-existing. Thus, the question of whether the plaintiff's pre-existing right hip arthritis wasaggravated by the motor vehicle accident was clearly "put in issue in the respective medicalreports previously exchanged" (22 NYCRR 202.17 [h]).
Moreover, the videotaped testimony of Dr. Walsh was recorded 11 weeks prior to the trialdate. Thus, the defendants had ample opportunity to prepare their defense to address this claim attrial. In addition, we note that on cross-examination of Dr. Walsh, during the videotapedtestimony, the defendants' counsel was well prepared to and did question Dr. Walsh at lengthabout the discrepancy between his testimony on direct and the opinion expressed in his writtennarrative report (see McLamb v Metropolitan Suburban Bus Auth., 139 AD2d 572, 573[1988]).
Accordingly, the Supreme Court improvidently exercised its discretion in granting thedefendants' motion to preclude the videotaped testimony of the plaintiff's treating physician and,upon preclusion, to dismiss the complaint insofar as asserted by the plaintiff, and the matter mustbe remitted to the Supreme Court, Westchester County, for a trial. Fisher, J.P., Miller, Carni andBalkin, JJ., concur.