| Hamilton v Miller |
| 2013 NY Slip Op 03211 [106 AD3d 1476] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| Christopher Hamilton, Appellant, v John Miller et al.,Respondents. |
—[*1] Sliwa & Lane, Buffalo (Stanley J. Sliwa of counsel), for defendants-respondentsJohn Miller and David Miller. Ward Greenberg Heller & Reidy LLP, Rochester (Thomas E. Reidy of counsel), fordefendants-respondents Jules Musinger, Doug Musinger and Singer Associates.
Appeal from an order of the Supreme Court, Monroe County (Matthew A.Rosenbaum, J.), entered April 30, 2012. The order, among other things, directed plaintiffto produce certain medical reports.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages arising from hisexposure to lead-based paint as a child while residing at various times in rental unitsowned by defendants. As amplified by his bills of particulars, plaintiff alleged that hesuffered 58 injuries as a result of his exposure to lead, including neurological damage,diminished cognitive function and intelligence, emotional and psychological harm,lowered IQ, impaired educational and occupational functioning, behavioral problems,damage to his DNA, and other cognitive and developmental disabilities. DefendantsJules Musinger, Doug Musinger, and Singer Associates (Musinger defendants) moved tocompel plaintiff, prior to any physical or mental examinations of plaintiff pursuant toCPLR 3121 (a), to produce any medical reports diagnosing plaintiff with the allegedinjuries and causally relating those injuries to exposure to lead, and to provide anamended bill of particulars pertaining to the Musinger defendants to reflect thoseinjuries. In the alternative, the Musinger defendants requested an order precluding proofof plaintiff's injuries if plaintiff failed to produce any such aforementioned medicalreports in compliance with 22 NYCRR 202.17 (b) (1). Defendant John Millercross-moved for similar relief. Plaintiff opposed the motion and the cross motion, and inturn cross-moved for, inter alia, a protective order pursuant to CPLR 3103. Plaintiff alsorequested that Supreme Court take judicial notice of 42 USC § 4851 pursuant toCPLR 4511.
The court granted the Musinger defendants' motion and Miller's cross motion,ordering [*2]that, "in the event the plaintiff fails toproduce the aforementioned [medical] report or reports, plaintiff shall be precluded fromintroducing any proof concerning injuries alleged to have been sustained by theplaintiff," and denied plaintiff's cross motion. We affirm.
Contrary to plaintiff's contention, we conclude that the court properly denied thatpart of his cross motion requesting that the court take judicial notice of 42 USC §4851, i.e., the congressional findings concerning the Residential Lead-Based PaintHazard Reduction Act of 1992 ([RLPHRA]; 42 USC § 4851 et seq.). TheRLPHRA requires "the disclosure of lead-based paint hazards in . . .housing which is offered for sale or lease" (42 USC § 4852d [a] [1]), and creates aprivate right of action in favor of purchasers or lessees who incur lead-related damages(see 42 USC § 4852d [b] [3]; see generally Brown v Maple3, LLC, 88 AD3d 224,231-232 [2011]; Skerritt vBach, 23 AD3d 1080, 1081 [2005]). CPLR 4511 (a) provides that "[e]very courtshall take judicial notice without request of the . . . public statutes of theUnited States." The purpose of that provision is to "obviate the former legal requirementof proving as a fact a foreign statute or law upon which a party [is] rel[ying]"(Pfleuger v Pfleuger, 304 NY 148, 151 [1952]). Where a statute is not relevant toa particular case, however, a court may decline to take judicial notice of it (see Van Wert v Randall, 100AD3d 1079, 1081-1082 [2012]; cf. Corines v Dobson, 135 AD2d 390, 392[1987]). This case does not involve allegations that plaintiff was a purchaser or lessee ofthe premises in question or that defendants violated the RLPHRA and, therefore, 42 USC§ 4851 is not "a foreign statute or law upon which [plaintiff] [is] rel[ying]"(Pfleuger, 304 NY at 151). The court thus did not abuse its discretion in refusingto take judicial notice of that statute (see Van Wert, 100 AD3d at 1081-1082).Furthermore, the court was not required to take judicial notice of the factual findingscontained in section 4851 inasmuch as causation is one of the disputed issues to bedetermined at trial (seeRobinson v Bartlett, 95 AD3d 1531, 1536 [2012]; Sleasman vSherwood, 212 AD2d 868, 870 [1995]; see generally Hunter v New York,Ontario & W. R.R. Co., 116 NY 615, 621 [1889]).
We reject the further contention of plaintiff that the court abused its discretion indirecting him to produce medical reports diagnosing him with injuries that are causallyrelated to his exposure to lead. " 'Absent an abuse of discretion, we will not disturb thecourt's control of the discovery process' . . . , and we perceive no abuse ofdiscretion in this case" (Marablev Hughes, 38 AD3d 1344, 1345 [2007]; see Giles v A. Gi Yi, 105AD3d 1313, 1315 [2013]; Nerov Kendrick, 100 AD3d 1383, 1383-1384 [2012]; see generally CPLR3101 [a]; 22 NYCRR 202.17).
All concur except Whalen, J., who concurs on constraint of Giles v A. Gi Yi(105 AD3d 1313 [2013]). Present—Smith, J.P., Peradotto, Lindley, Valentino andWhalen, JJ.