| Gamino v DDSR Props., Inc. |
| 2017 NY Slip Op 01280 |
| Decided on February 16, 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 February 16, 2017
Friedman, J.P., Mazzarelli, Andrias, Feinman, Gesmer, JJ.
302232/11 3122N 3121
v
DDSR Properties, Inc., Defendant-Appellant.
Maizes & Maizes, LLP, Bronx (Michael H. Maizes of counsel), for appellant.
The Law Offices of Helen F. Dalton & Associates, P.C., Forest Hills (Oneshwer Michael Totaram of counsel), for respondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered September 28, 2015, which denied defendant's motion for summary judgment dismissing the complaint, and order, same court and Justice, entered April 13, 2016, which denied defendant's motion to compel plaintiff to submit to a medical examination, preclude plaintiff from submitting evidence of her physical condition at trial, or vacate the note of issue, unanimously modified, on the law, to require plaintiff to serve HIPAA compliant authorizations on defendant's counsel within 30 days of entry of this order, and otherwise affirmed, without costs.
Issues of fact exist as to whether there was snowfall at the time and location of plaintiff's accident and, if so, whether the ice on which plaintiff allegedly slipped and fell derived from prior snowfalls and existed for a sufficient length of time to put defendant on notice (see Ndiaye v NEP W. 119th St. LP 124 AD3d 427, 428 [1st Dept 2015]). Specifically, both plaintiff and her partner submitted affidavits stating that it did not snow on the day of her accident until after the accident, plaintiff testified that there was ice on the ground at the time of her accident, and her partner averred that there was ice at the location of the accident an hour before it started snowing and that it had not snowed in days prior to the accident, which was corroborated by daily meteorological records which also showed an accumulation of 15 inches of snow on the ground from previous snowfalls. The meteorological records relied on by defendant showing snow at LaGuardia Airport at the time of plaintiff's accident, but unaccompanied by an expert affidavit, are not dispositive of weather conditions in the Bronx, where the accident occurred (Duffy-Duncan v Berns & Castro, 45 AD3d 489, 490 [1st Dept 2007]; see also Lebron v Napa Realty Corp., 65 AD3d 436, 437 [1st Dept 2009]).
Further, Supreme Court did not abuse its discretion in denying defendant's motion, made some 10 months after the note of issue had been filed, to compel plaintiff to submit to a medical evaluation. However, plaintiff should be required to serve HIPAA compliant authorizations on defendant's counsel within 30 days of entry of this order.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 16, 2017
DEPUTY CLERK