| Amoroso v City of New York |
| 2009 NY Slip Op 07212 [66 AD3d 618] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Bernard Amoroso, Respondent, v City of New York et al.,Defendants, and Petrocelli Electric Co., Inc., Appellant. (And a Third-PartyAction.) |
—[*1] Romagnolo & Mingino LLP, Staten Island, N.Y. (Michael J. Mingino and Julie T. Mark ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant Petrocelli Electric Co.,Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Rothenberg, J.), dated July 30, 2008, as denied those branches of its motion which wereto compel the plaintiff to provide authorizations for the release of his medical records pertainingto his preexisting kidney, cardiac, and diabetic conditions, and to vacate the note of issue andcertificate of readiness.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and inthe exercise of discretion, with costs, and those branches of the appellant's motion which were tocompel the plaintiff to provide authorizations for the release of his medical records pertaining tohis preexisting kidney, cardiac, and diabetes conditions, and to vacate the note of issue andcertificate of readiness, are granted.
Since the nature and severity of the plaintiff's prior medical conditions may have an impactupon the amount of damages, if any, recoverable for a claim of loss of enjoyment of life, therecords regarding those preexisting medical conditions are material and necessary to the defense(see Orlando v Richmond Precast, Inc.,53 AD3d 534 [2008]; Diamondv Ross Orthopedic Group, P.C., 41 AD3d 768, 769 [2007]; Vanalst v City of NewYork, 276 AD2d 789 [2000]). Accordingly, that branch of the appellant's motion which wasto compel the plaintiff to produce authorizations for the release of his medical records pertainingto his preexisting kidney, cardiac, and diabetic conditions should have been granted.
The plaintiff's certificate of readiness incorrectly stated that all pretrial discovery, includingphysical examinations, had been completed. As this was a misstatement of a material fact, thatbranch of the appellant's motion which was to vacate the note of issue and certificate of readinessshould have been granted (see 22 NYCRR 202.21 [e]; Brown v Astoria Fed. Sav., 51 AD3d961, 962 [2008]; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497 [2002];Drapaniotis v 36-08 33rd St. Corp., 288 AD2d 254 [2001]). Dillon, J.P., Dickerson,Belen and Lott, JJ., concur.