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ALBANY – Clarifying the rules of discovery in lead paint and toxic tort cases, the Court of Appeals on Thursday held that plaintiffs do not have to establish causation at the earliest litigation stages by providing detailed medical records supporting each allegation of harm.

In an opinion by Chief Judge Jonathan Lippman (See Profile), the court said a trial judge in Monroe County erred in requiring plaintiffs to produce medical reports, prior to defense medical examinations, establishing a professional diagnosis for each and every alleged injury.

“To the extent that plaintiffs are arguing that the rule does not obligate them to hire a medical provider to examine them and create a report solely for purposes of the litigation, we agree,” Lippman wrote. “Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy [the statute] could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits.”

The ruling resulted from two appeals out of Monroe County, where Supreme Court Justice Matthew Rosenbaum (See Profile) had directed lead paint plaintiffs to produce medical reports connecting their injuries to lead. Rosenbaum had held that if the plaintiffs failed to provide that information before the defense medical examinations, they could not introduce any proof related to alleged injuries.

The Appellate Division, Fourth Department, upheld Rosenbaum in both cases, but the Court of Appeals agreed with a dissenting justice, Gerald Whalen (See Profile), saying the lower courts imposed more of a burden than is required under 22 NYCRR 202.17.

Hamilton v. Miller, 113, and Giles v. Yi, 114, both stemmed from personal injury actions brought by attorney Mo Athari, whose practice in Utica concentrates on lead paint cases.

In both cases, Athari filed what the Court of Appeals described as “boilerplate” bills of particulars alleging dozens of injuries but without disclosing medical records substantiating those injuries. And in both cases, defense counsel convinced Rosenbaum to order the plaintiffs to document the alleged injuries, under threat of preclusion.

The Fourth Department, in a memorandum, affirmed Rosenbaum, finding that the trial court properly exercised its discretion and that “defendants should not be put to the time, expense and effort” of conducing an independent medical examination without reports linking the plaintiff’s symptoms to the defendants’ alleged negligence. It said the purpose of CPLR 3121(a) was to provide the defendant with a “competing assessment” of the plaintiff’s medical condition.

Whalen, in a signed dissent, said the trial order imposed “unduly burdensome obligations” on the plaintiff. He said the statute only requires disclosure of medical reports from providers who have previously treated the plaintiff, and does not require the plaintiff to retain an expert witness on causation prior to the defense’s medical examination.

Lippman said the “dearth of medical evidence” in the Hamilton and Giles cases suggests that neither of the plaintiffs were treated for many of the injuries alleged in Athari’s complaints, raising a question of just what must be disclosed under Rule 202.17.

The majority said that plaintiffs “need only produce reports from medical providers who have previously treated or examined them,” adding that plaintiffs can’t avoid disclosure simply because medical providers did not draft any reports.

“If plaintiff’s medical reports do not contain the information required by the rule, then plaintiffs must have the medical providers draft reports setting forth that information,” Lippman wrote. “If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the rule.”

Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Eugene Pigott Jr. (See Profile), Jenny Rivera (See Profile) and Sheila Abdus-Salaam (See Profile) joined Lippman. Judge Robert Smith (See Profile) dissented, adopting the reasoning in the Fourth Department majority memorandum (see 106 AD3d 1476, 2013, and 105 AD3d 1313, 2013).

Athari argued the appeals for both Hamilton and Giles.

The respondents in Hamilton were represented by Thomas Reidy, a partner at Ward Greenberg Heller & Reidy in Rochester, and Stanley Sliwa of Sliwa & Lane in Buffalo.

In Giles, the respondents were represented by Gary Abelson, a partner at Hiscock & Barclay in Rochester, and William Wingertzahn, formerly a partner at Wilson Elser Moskowitz Edelman & Dicker in White Plains.

Parkland Dispute

Also on Thursday, the court affirmed the Appellate Division, Second Department, in a Long Island case involving the use of public parkland for non-park purposes. It held that the plaintiffs can challenge the alleged violation of the public trust as long as the violation endures, with no statute of limitations bar.

Capruso v. Village of Kings Point/ State of New York v. Village of Kings Point, 102, is rooted in a dispute over parkland on the Great Neck Peninsula.

Records show that the Village of Kings Point acquired 173 acres of wooded land in the 1920s to create the Kings Point Park, which was leased to the Great Neck Park District in 1938 with the understanding that it would be maintained as a “natural and scenic park.” In 1946, the lease was amended to exclude the western corner because the village wanted to use that portion for a police pistol range and to store highway materials.

The conflict centers on a proposal the village adopted in 2008 to deforest the western corner and build a 12,000-square-foot public works facility.

Neighbors objected, arguing that state legislative approval was necessary before public parkland could be used for non-park purposes; the state later brought its own action. The village argued that the consolidated claims were time-barred, but the lower courts disagreed in an opinion affirmed by the Court of Appeals.

“In sum, under the continuing wrong doctrine, plaintiffs are able to challenge defendants’ ongoing violation of the public trust doctrine at any time while the violation lasts, without being barred by the statute of limitations,” Pigott wrote for the unanimous court.

John Brickman, a partner at Ackerman, Levine, Cullen, Brickman & Limmer in Great Neck, argued for the village. Assistant Solicitor General Bethany Davis Noll represented the state. Reed Super of the Super Law Group in Manhattan argued for the individual plaintiffs.