Opinion
03-07-2017
Elhadj Y. DIAKO, Plaintiff–Respondent, v. Leonardo Dany Aguirre YUNGA, et al., Defendants–Appellants.
Amabile & Erman, P.C., Staten Island (Nicholas J. Loiacono of counsel), for appellants. Macaluso & Fafinski, P.C., Bronx (Donna A. Fafinski of counsel), for respondent.
Amabile & Erman, P.C., Staten Island (Nicholas J. Loiacono of counsel), for appellants.
Macaluso & Fafinski, P.C., Bronx (Donna A. Fafinski of counsel), for respondent.
ANDRIAS, J.P., FEINMAN, GISCHE, GESMER, JJ.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered October 7, 2016, which granted plaintiff's motion to restore the case to the trial calendar and denied defendants' cross motion to compel plaintiff to comply with all outstanding discovery demands, affirmed, without costs.
The motion court providently exercised its discretion in granting plaintiff's motion and denying defendants' cross motion (see Gumbs v. Flushing Town Ctr. III, L.P., 114 A.D.3d 573, 574, 981 N.Y.S.2d 394 [1st Dept.2014] ). Plaintiff's waiver of his physician-patient privilege is limited to those conditions that he affirmatively placed in controversy (id. ). Further, the hospital records defendants seek are not relevant, since plaintiff averred that he did not receive any medical care, treatment, or diagnostic testing at the hospital before his accident for any injuries he sustained to his body in the accident (Elmore v. 2720 Concourse Assoc., L.P., 50 A.D.3d 493, 493, 855 N.Y.S.2d 528 [1st Dept.2008] ). The motion court also properly denied defendants' request for plaintiff's employment records from his previous employer, where he worked approximately 10 years before the accident, since such a request is "overbroad and unduly burdensome" (Tomaino v. 209 E. 84 St. Corp., 68 A.D.3d 527, 530, 891 N.Y.S.2d 51 [1st Dept.2009] ).
We have considered defendants' remaining contentions and find them unavailing.
All concur except GISCHE, J. who concurs in a separate memorandum as follows:
GISCHE, J. (concurring).
While I concur, I do so solely on constraint of Gumbs v. Flushing Town Center III, L.P. , 114 A.D.3d 573, 981 N.Y.S.2d 394 (1st Dept.2014). I dissented in that case, and while it is my belief that "[p]laintiff's medical records [may] shed light on whether he suffered from other conditions, having nothing to do with this accident, which may have impacted upon his ability to enjoy life and/or life expectancy" (Gumbs, 114 A.D.3d at 577, 981 N.Y.S.2d 394, Gische, J. dissenting), I will follow the prevailing precedent in this department and join in the decision of my colleagues.