Practice point: If plaintiff's prior medical condition might affect the amount of recoverable damages, the medical records are material and necessary to the defense, and a motion to compel their production will be granted.
Practitioners should note that if plaintiff's certificate of readiness incorrectly stated that all pretrial discovery, including physical examinations, had been completed, this is a misstatement of a material fact and the motion to vacate the note of issue and certificate of readiness will be granted.
Case: Amoroso v. City of New York, NY Slip Op 07212 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
