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

1394
CA 13-01595
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


KENNETH M. SCHLAU, JR., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, BUFFALO URBAN RENEWAL AGENCY,
WESTERN NEW YORK ARENA, LLC, HSBC ARENA, ADT
SECURITY SERVICES, INC. (ADT),
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.
(APPEAL NO. 1.)


WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, NEW YORK CITY (GREGORY
J. DELL OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered January 10, 2013. The order, among other things,
vacated the CPLR 3216 (b) (3) notice filed by defendants City of
Buffalo, Buffalo Urban Renewal Agency, Western New York Arena, LLC,
HSBC Arena and ADT Security Services, Inc. (ADT).

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained when he touched the handle of an
electronically secured door at HSBC Arena and sustained an electric
shock. These consolidated appeals concern discovery disputes that
have arisen between plaintiff and certain defendants.

     In appeal No. 1, defendants City of Buffalo, Buffalo Urban
Renewal Agency, Western New York Arena, LLC, HSBC Arena, and ADT
Security Services, Inc. (ADT) (collectively, Arena defendants) appeal
from an order that, inter alia, granted plaintiff’s motion to vacate
their CPLR 3216 (b) (3) notice, permitted discovery to continue beyond
the 90-day period set forth in the notice, and denied their cross
motion seeking a scheduling order. “Supreme Court is vested with
broad discretion in supervising disclosure” (Blumenthal v Tops
Friendly Mkts., 182 AD2d 1105, 1106), and we conclude that it did not
abuse its discretion in granting plaintiff’s motion to vacate the CPLR
3216 (b) (3) notice. Discovery was not complete, and the Arena
defendants continued to seek disclosure after serving the notice,
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                                                         CA 13-01595

which “was sufficient reason in and of itself to” vacate the notice
(Gonzalez v Deutsch Co., 193 AD2d 449, 449; see Little v Long Is.
Jewish Med. Ctr., 231 AD2d 496, 498). In addition, the court acted
within its discretion in scheduling its calendar and setting
timetables for discovery when it denied the Arena defendants’ cross
motion for a scheduling order (see Matter of Rattner v Planning Commn.
of Vil. of Pleasantville, 156 AD2d 521, 528, appeal dismissed 75 NY2d
897). The court also properly exercised its discretion in awarding
costs on the motion to plaintiff (see Greenspan v Rockefeller Ctr.
Mgt. Corp., 268 AD2d 236, 237; American Auto. Plan v Corcoran, 166
AD2d 215, 215).

     Contrary to the contention of the Arena defendants in appeal No.
2, we conclude that the court properly denied their motion seeking to
limit further disclosure or, alternatively, the appointment of a
referee to supervise further disclosure (see Kogan v Royal Indem. Co.,
179 AD2d 399, 399). We note that the court was without authority to
appoint as a referee the private attorney proposed by the Arena
defendants absent plaintiff’s consent (see Ploski v Riverwood Owners
Corp., 255 AD2d 24, 28).

     We agree with the Arena defendants and defendant U. & S.
Services, Inc. (U. & S.) in appeal No. 3, however, that the court
erred in denying in their entirety their respective motions seeking
complete disclosure of plaintiff’s unredacted medical records.
Plaintiff waived the physician-patient privilege by affirmatively
placing his medical and psychological condition in controversy, and he
has disclosed all of his postaccident medical records (see Goetchius v
Spavento, 84 AD3d 1712, 1713). With respect to plaintiff’s
preaccident medical records, the waiver of the physician-patient
privilege extends to the same body parts or conditions that are at
issue in the action (see Geraci v National Fuel Gas Distrib. Corp.,
255 AD2d 945, 946), but not to “ ‘information involving unrelated
illnesses and treatments’ ” (Carter v Fantauzzo, 256 AD2d 1189, 1190).
Upon our review of the disputed medical records, we conclude that the
court properly denied the motions insofar as they sought to compel
production of plaintiff’s hospital and pediatric medical records dated
on or before March 19, 1997, inasmuch as those records, in the context
of the action herein, are not material and necessary to the defense
(see Chervin v Macura, 28 AD3d 600, 601), nor are they reasonably
likely to lead to relevant evidence (see DeStrange v Lind, 277 AD2d
344, 345). We further conclude, however, that given plaintiff’s broad
allegations of injury, disability, and loss of enjoyment of life, the
court abused its discretion in denying the motions of the Arena
defendants and U. & S. with respect to plaintiff’s hospital and
pediatric medical records dated on or after March 20, 1997 (see Boyea
v Benz, 96 AD3d 1558, 1560). We therefore modify the order in appeal
No. 3 accordingly.

     We dismiss the appeals from the order in appeal No. 4. The
motions of the Arena defendants and U. & S., although denominated
motions seeking leave to renew and to reargue, sought leave to reargue
only, and the court’s order denying those motions is not appealable
(see D&A Constr., Inc. v New York City Hous. Auth., 105 AD3d 464, 465;
                                 -3-                          1394
                                                         CA 13-01595

Coccia v Liotti, 70 AD3d 747, 759, lv dismissed 15 NY3d 767).

     We also dismiss the appeals from the order in appeal No. 5. The
Arena defendants challenge only that part of the order reserving
decision on plaintiff’s request for sanctions, and that part of the
order is not appealable (see Matter of Trader v State of New York, 277
AD2d 978, 978). U. & S. challenges the order only insofar as it
directs U. & S. to submit an affirmation concerning the medical
records in its possession. U. & S. has complied with that directive,
thus rendering its appeal moot (see Lombardo v New York Univ. Med.
Ctr., 232 AD2d 459, 460).




Entered:   February 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
