

Diako v Yunga (2017 NY Slip Op 01649)





Diako v Yunga


2017 NY Slip Op 01649


Decided on March 7, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 7, 2017

Andrias, J.P., Feinman, Gische, Gesmer, JJ.


3265N 309612/11

[*1] Elhadj Y. Diako, Plaintiff-Respondent,
vLeonardo 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.

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 AD3d 573, 574 [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 AD3d 493, 493 [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 AD3d 527, 530 [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 AD3d 573 [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 AD3d at 577, Gische, J. dissenting), I will follow the prevailing precedent in this department and join in the decision of my colleagues.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 7, 2017
CLERK


