        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1117
CA 12-00678
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


MICHAEL MCCARTER, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                               MEMORANDUM AND ORDER

WILLIAM WOODS, DEFENDANT-APPELLANT-RESPONDENT.


BURGIO, KITA & CURVIN, BUFFALO (STEVEN P. CURVIN OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

ATHARI & ASSOCIATES, LLC, UTICA (NICOLE C. PELLETIER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Monroe County (Matthew A. Rosenbaum, J.), entered January 9, 2012.
The order, inter alia, denied that part of the motion of defendant
seeking to preclude plaintiff from offering certain medical evidence
at trial.

     It is hereby ORDERED that the order so appealed from is modified
on the law by denying that part of defendant’s motion concerning
“speaking authorizations” from plaintiff’s educators and by granting
plaintiff’s cross motion to that extent and as modified the order is
affirmed without costs.

     Memorandum: Defendant appeals from an order that, inter alia,
denied that part of his motion seeking to preclude plaintiff from
offering certain medical evidence at trial based on plaintiff’s
failure to disclose medical reports of his examining physician prior
to the examination of plaintiff by defendant’s examining physician.
Contrary to defendant’s contention, Supreme Court properly denied that
part of his motion. “ ‘Absent an abuse of discretion, we will not
disturb the court’s control of the discovery process’ ” (Marable v
Hughes, 38 AD3d 1344, 1345; see Hann v Black, 96 AD3d 1503, 1504; MS
Partnership v Wal-Mart Stores, 273 AD2d 858, 858).

     Turning to plaintiff’s cross appeal, we note that plaintiff
contends that the court abused its discretion in conditionally
granting that part of defendant’s motion to preclude plaintiff from
presenting evidence at trial concerning his mental or physical
condition unless plaintiff provided defendant with speaking
authorizations for plaintiff’s medical providers and educators.
Plaintiff further contends that the court erred in denying his cross
motion for a protective order with respect to the speaking
authorizations and for costs incurred because of the allegedly
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                                                           CA 12-00678

improper cancellation by defendant’s attorney of scheduled depositions
of plaintiff and his mother. We reject plaintiff’s contention with
respect to speaking authorizations for his medical providers. In
Arons v Jutkowitz (9 NY3d 393, 409-411), the Court of Appeals provided
the framework for conducting discovery with regard to nonparty
healthcare providers, which includes the use of speaking
authorizations. Arons, however, does not authorize defendant to
obtain speaking authorizations for plaintiff’s educators. We decline
to extend Arons to require production of speaking authorizations to
anyone other than nonparty healthcare providers. The Arons decision
is narrow in scope and provides a framework as to how parties must
procedurally comply with the Health Insurance Portability and
Accountability Act of 1996 (Pub L 104-191, 110 US Stat 1936) when
attempting to speak with an adverse party’s treating physician.
Defendant made no showing that the discovery devices available under
the CPLR and the Uniform Rules for the New York State Trial Courts
were inadequate to obtain the necessary discovery. Thus, we agree
with plaintiff that the court abused its discretion in granting that
part of defendant’s motion with respect to speaking authorizations for
plaintiff’s educators and in denying defendant’s cross motion to that
extent. We therefore modify the order accordingly.

     Finally, contrary to plaintiff’s contention, the court did not
abuse its discretion in denying his cross motion to the extent that it
sought reimbursement for the costs related to the rescheduled
depositions of plaintiff and his mother (see Hilley v Sanabria, 12
AD3d 1188, 1189).

     All concur except PERADOTTO and MARTOCHE, JJ., who dissent in part
and vote to affirm in the following Memorandum: We respectfully
dissent in part because we disagree with the majority that Supreme
Court abused its discretion in conditionally granting that part of
defendant’s motion seeking to preclude plaintiff from presenting
evidence at trial concerning his mental or physical condition unless
plaintiff provided defendant with speaking authorizations for
plaintiff’s educational providers, and in denying plaintiff’s cross
motion to that extent. We would therefore affirm the order in its
entirety.

     Plaintiff commenced this action seeking damages for injuries he
allegedly sustained as a result of his exposure to lead-based paint
while residing in a rental property owned by defendant. In his second
amended bill of particulars, plaintiff alleged that his injuries
include, inter alia, diminished cognitive function and intelligence,
impaired academic achievement, disability that severely limits his
educational attainment, decreased educational opportunities, and
“serious impairment in school functioning.” During the course of
discovery, defendant sought the names and addresses of plaintiff’s
witnesses, including “[a]ll witnesses in connection with any issues
concerning damages.” In response thereto, plaintiff identified over
190 potential witnesses, including numerous employees of the Lee
County School District and the Rochester City School District where
plaintiff attended school (hereafter, educational providers).
Defendant thereafter served plaintiff with “speaking authorizations”
                                 -3-                          1117
                                                         CA 12-00678

for each of the potential witnesses identified by plaintiff, including
the educational providers. When plaintiff refused to sign the
authorizations, defendant moved to preclude plaintiff from presenting
evidence at trial concerning his mental or physical condition unless
he provided defendant with the requested authorizations, and plaintiff
cross-moved for a protective order relative to the speaking
authorizations.

     Contrary to the conclusion of the majority, we conclude that the
court did not abuse its discretion in granting that part of
defendant’s motion for a conditional order of preclusion based on
plaintiff’s failure to provide defendant with the requested
authorizations for his educational providers. “ ‘[I]t is well settled
that a trial court has broad discretionary power in controlling
discovery and disclosure, and only a clear abuse of discretion will
prompt appellate action’ ” (Cochran v Cayuga Med. Ctr. At Ithaca, 90
AD3d 1227, 1227). With respect to the scope of discovery, CPLR 3101
requires “full disclosure of all matter material and necessary in the
prosecution or defense of an action” (CPLR 3101 [a]; see Kavanagh v
Ogden Allied Maintenance Corp., 92 NY2d 952, 954). Although so-called
“speaking authorizations” are not specifically identified as a
disclosure device in article 31 of the CPLR or part 202 of the Uniform
Rules for the New York State Trial Courts, the Court of Appeals has
written that “there are no statutes and no rules expressly
authorizing–or forbidding–ex parte discussions with any nonparty, . .
. [and a]ttorneys have always sought to talk with nonparties who are
potential witnesses as part of their trial preparation. [CPLR
a]rticle 31 does not ‘close[] off’ these ‘avenues of informal
discovery,’ and relegate litigants to the costlier and more cumbersome
formal discovery devices” (Arons v Jutkowitz, 9 NY3d 393, 409, quoting
Niesig v Team I, 76 NY2d 363, 372). The Court of Appeals further
wrote, “Our decisions plainly permit informal discovery, and the
Legislature has not directed to the contrary. Absent such legislative
direction, we decline to limit the scope of such discovery” (id. at
409 n 1).

     We see no reason why nonparty educators should be less available
than nonparty treating physicians under the principles articulated by
the Court of Appeals in Arons (see id. at 408-409). As the court
noted in this case, while the number of authorizations defendant seeks
is significant, it was plaintiff who provided the names to defendant
in response to defendant’s demand for that information, and defendant
would bear the burden of contacting each named individual to determine
whether he or she has relevant information. We therefore conclude
that the court properly granted that part of defendant’s motion
concerning speaking authorizations from plaintiff’s educational
providers and denied plaintiff’s cross motion to that extent.




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
