| Colwin v Katz |
| 2013 NY Slip Op 00050 [102 AD3d 449] |
| January 8, 2013 |
| Appellate Division, First Department |
| Mercedes Colwin, Respondent, v Bruce Katz,M.D., et al., Appellants, et al., Defendant. |
—[*1] Pollack Pollack Isaac & De Cicco, LLP, New York (Jillian Rosen of counsel), forrespondent.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered August 15,2012, which denied defendants Bruce Katz, M.D. and Bruce Katz, M.D., P.C.'s motion tocompel plaintiff to furnish certain medical authorizations and to serve a further bill ofparticulars specifying her claims, unanimously modified, on the law, defendants' motiongranted to the extent that it sought to compel plaintiff to furnish authorizations for thoseportions of her dental records about her medical history, and otherwise affirmed, withoutcosts.
In this medical malpractice action, plaintiff alleges that defendant dermatologistBruce Katz, M.D. caused her to suffer an "aggravation of a pre-existing latent andasymptomatic degenerative condition." Accordingly, defendants sought authorizationsfor those portions of plaintiff's dental records that discuss her medical history. Inasmuchas plaintiff has clearly voluntarily put her prior medical condition at issue (CPLR 4504[a]; see Dillenbeck v Hess, 73 NY2d 278, 283-284 [1989]), such disclosure ismaterial and necessary for the defense of this action so that defendants may ascertain hercondition prior to being treated by Dr. Katz (CPLR 3101 [a]; see McGlone v Port Auth. of N.Y.& N.J., 90 AD3d 479, 480 [1st Dept 2011]; Rega v Avon Prods., Inc., 49 AD3d 329, 330 [1st Dept2008]). Contrary to plaintiff's contention, defendants' demand is tailored, directed atrelevant material, and is not tantamount to a fishing expedition (see Ford v Rector,Church-Wardens, Vestrymen of Trinity Church in the City of N.Y., 81 AD3d502 [1st Dept 2011]).
It was not an improvident exercise of discretion for Supreme Court to deny thosebranches of defendants' motion which sought to compel plaintiff to furnish a morespecific supplemental bill of particulars and to strike plaintiff's initial bill of particulars.As we noted on this matter's prior appeal, "[t]he purpose of a bill of particulars is toamplify the pleadings . . . and prevent surprise at trial" (Colwin v Katz, 90 AD3d516, 516 [1st Dept 2011]), which plaintiff's supplemental bill of particularsadequately does (see Torres vNew York City Tr. Auth., 78 AD3d 419, 420 [1st Dept 2010]; Spiegel v [*2]Gingrich, 74 AD3d 425, 426 [1st Dept 2010]).The mere fact that it incorporates the initial bill of particulars, which containedboilerplate averments, is an insufficient ground for disturbing Supreme Court'sdetermination. Concur—Tom, J.P., Andrias, Freedman and Gische, JJ.