| McGlone v Port Auth. of N.Y. & N.J. |
| 2011 NY Slip Op 08975 [90 AD3d 479] |
| Dcmbr 13, 2011 |
| Appellate Division, First Department |
| Michael McGlone et al., Appellants, v Port Authority ofNew York and New Jersey et al., Respondents, et al., Defendant. |
—[*1] Fabiani Cohen & Hall, LLP, New York (Michele V. Ficarra of counsel), forrespondents.
Orders, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 10, 2011,which, in this personal injury action, to the extent appealed from, denied plaintiffs' motion tostrike defendants-respondents' answer, and granted defendants' motion for discovery to the extentof requiring plaintiff Michael McGlone to provide authorizations for all of his medical recordsunrestricted as to date as addressed in defendants' motion, including plaintiff's medical recordsfrom his enlistment in the United States Marine Corp., unanimously affirmed, without costs.
Although defendants did not timely comply with prior court-ordered deadlines, the recordsupports the motion court's determination that they substantially complied with their disclosureobligations and that any failure to comply was not wilful, contumacious or in bad faith (see Perez v New York City Tr. Auth.,73 AD3d 529, 530 [2010]; Bannerv New York City Hous. Auth., 73 AD3d 502, 503 [2010]).
The court also properly directed plaintiff to provide authorizations for all medical recordsunrestricted by date as sought by defendants in prior discovery requests. Plaintiff averred in hisbill of particulars that the injuries he allegedly sustained as a result of the subject accidentaggravated or exacerbated underlying conditions that were asymptomatic before the accident, andthat he was disabled as a result. In light of his averments, plaintiff voluntarily placed his physicalcondition in issue; therefore, defendants are entitled to discovery to determine the extent, if any,that plaintiff's claimed injuries "are attributable to accidents other than the one at issue here" (Rega v Avon Prods., Inc., 49 AD3d329, 330 [2008]; cf. Noble v Ackerman, 216 AD2d 140 [1995]).Concur—Gonzalez, P.J., Friedman, Moskowitz, Acosta and Richter, JJ.[*2]
Motion to strike portions of respondents' briefreferring to matters dehors the record granted.