| Andrade v American Parkinson Disease Assn., Inc. |
| 2009 NY Slip Op 07364 [66 AD3d 719] |
| October 13, 2009 |
| Appellate Division, Second Department |
| Alan Andrade, Appellant, v American Parkinson DiseaseAssociation, Inc., Defendant, and CLJ Building Enterprises, Inc., Respondent. (And aThird-Party Action.) |
—[*1] James Borkowski, White Plains, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, (1) from so much of an order of the Supreme Court, Richmond County (Minardo, J.),entered January 9, 2009, as granted the application of the defendant CLJ Building Enterprises,Inc., to compel him to execute and furnish certain authorizations permitting it to obtain hismedical records in connection with a prior incident by a date certain and precluding him fromadducing evidence at trial with respect to his injuries if he did not provide those authorizationsby that date, and (2) from so much of an order of the same court dated February 4, 2009, asgranted those branches of the cross motion of the defendant CLJ Building Enterprises, Inc.,which were pursuant to CPLR 3126 to preclude him from adducing certain evidence at trial andfrom conducting a deposition of nonparty investigators retained by that defendant as a sanctionfor his noncompliance with the order entered January 9, 2009.
Ordered that the appeal from the order dated January 9, 2009 is dismissed, as that order isnot appealable as of right, and we decline to grant leave to appeal (see CPLR 5701); andit is further,
Ordered that the order dated February 4, 2009 is reversed insofar as appealed from, on thelaw, those branches of the cross motion of the defendant CLJ Building Enterprises, Inc., whichwere to preclude the plaintiff from adducing certain evidence at trial and conducting a depositionof nonparty investigators retained by that defendant are denied, and the plaintiff's time to servemedical authorizations upon that defendant permitting it to obtain his medical records inconnection with the prior incident, to the extent not already provided, is extended until 20 daysafter service upon him of a copy of this decision and order; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
Although the note of issue had already been filed in this action, the Supreme Courtprovidently exercised its discretion in directing the plaintiff to execute and furnish to thedefendant [*2]CLJ Building Enterprises, Inc. (hereinafter CLJ),certain medical authorizations pursuant to the Health Insurance Portability and AccountabilityAct of 1996 (42 USC § 1320d et seq.) relative to a prior incident. Those medicalauthorizations were necessary for CLJ to obtain the plaintiff's medical records for use at trial (see Singh v Friedson, 36 AD3d605, 606 [2007]; see also Arons vJutkowitz, 9 NY3d 393, 415 [2007]). However, the order containing that directive,which was dated October 16, 2008, but not entered until January 9, 2009, was never served uponthe plaintiff with notice of entry. Accordingly, so much of the order dated February 4, 2009, asgranted those branches of CLJ's cross motion which were to preclude the plaintiff frompresenting certain evidence and conducting a deposition of CLJ's investigators as a sanction forthe plaintiff's alleged noncompliance with the order entered January 9, 2009, must be reversed,and the plaintiff's time to serve the authorizations must be extended as indicated.
In light of our determination, we need not address the plaintiff's remaining contentions.Rivera, J.P., Florio, Eng and Leventhal, JJ., concur.