SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
355
CA 12-01574
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
CHRISTOPHER HAMILTON, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
JOHN MILLER, DAVID MILLER, JULES MUSINGER,
DOUG MUSINGER AND SINGER ASSOCIATES,
DEFENDANTS-RESPONDENTS.
ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
SLIWA & LANE, BUFFALO (STANLEY J. SLIWA OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS JOHN MILLER AND DAVID MILLER.
WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (THOMAS E. REIDY OF
COUNSEL), FOR DEFENDANTS-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 plaintiff to 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 his exposure to lead-based paint as a child while
residing at various times in rental units owned by defendants. As
amplified by his bills of particulars, plaintiff alleged that he
suffered 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. Defendants Jules
Musinger, Doug Musinger, and Singer Associates (Musinger defendants)
moved to compel plaintiff, prior to any physical or mental
examinations of plaintiff pursuant to CPLR 3121 (a), to produce any
medical reports diagnosing plaintiff with the alleged injuries and
causally relating those injuries to exposure to lead, and to provide
an amended bill of particulars pertaining to the Musinger defendants
to reflect those injuries. In the alternative, the Musinger
defendants requested an order precluding proof of plaintiff’s injuries
if plaintiff failed to produce any such aforementioned medical reports
in compliance with 22 NYCRR 202.17 (b) (1). Defendant John Miller
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CA 12-01574
cross-moved for similar relief. Plaintiff opposed the motion and the
cross motion, and in turn cross-moved for, inter alia, a protective
order pursuant to CPLR 3103. Plaintiff also requested that Supreme
Court take judicial notice of 42 USC § 4851 pursuant to CPLR 4511.
The court granted the Musinger defendants’ motion and Miller’s
cross motion, ordering that, “in the event the plaintiff fails to
produce the aforementioned [medical] report or reports, plaintiff
shall be precluded from introducing any proof concerning injuries
alleged to have been sustained by the plaintiff”, and denied
plaintiff’s cross motion. We affirm.
Contrary to plaintiff’s contention, we conclude that the court
properly denied that part 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 Paint Hazard Reduction
Act of 1992 ([RLPHRA] 42 USC § 4851 et seq.). The RLPHRA requires
“the disclosure of lead-based paint hazards in . . . housing which is
offered for sale or lease” (42 USC § 4852d [a] [1]), and creates a
private 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; Skerritt v Bach, 23 AD3d 1080,
1081). CPLR 4511 (a) provides that “[e]very court shall take judicial
notice without request of the . . . public statutes of the United
States.” The purpose of that provision is to “obviate the former
legal requirement of proving as a fact a foreign statute or law upon
which a party [is] rel[ying]” (Pfleuger v Pfleuger, 304 NY 148, 151).
Where a statute is not relevant to a particular case, however, a court
may decline to take judicial notice of it (see Van Wert v Randall, 100
AD3d 1079, 1081-1082; cf. Corines v Dobson, 135 AD2d 390, 392). This
case does not involve allegations that plaintiff was a purchaser or
lessee of the 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 refusing to 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 findings contained in section 4851 inasmuch as causation is
one of the disputed issues to be determined at trial (see Robinson v
Bartlett, 95 AD3d 1531, 1536; Sleasman v Sherwood, 212 AD2d 868, 870;
see generally Hunter v New York, Ontario & W. R.R. Co., 116 NY 615,
621).
We reject the further contention of plaintiff that the court
abused its discretion in directing him to produce medical reports
diagnosing him with injuries that are causally related to his exposure
to lead. “ ‘Absent an abuse of discretion, we will not disturb the
court’s control of the discovery process’ . . . , and we perceive no
abuse of discretion in this case” (Marable v Hughes, 38 AD3d 1344,
1345; see Giles v A. Gi Yi, ___ AD3d ___, ___ [Apr. 26, 2013]; Nero v
Kendrick, 100 AD3d 1383, 1383-1384; see generally CPLR 3101 [a]; 22
NYCRR 202.17).
All concur except WHALEN, J., who concurs on constraint of Giles v
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CA 12-01574
A. Gi Yi (___ AD3d ___ [Apr. 26, 2013]).
Entered: May 3, 2013 Frances E. Cafarell
Clerk of the Court