GUILLERMO CROUSSETT, plf-ap
8967. GUILLERMO CROUSSETT, plf-ap, —AGAINST— MINALIE CHEN def-res — Trolman, Glaser & Lichtman, P.C., New York (Michael T. Altman of counsel), for ap — Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset (Anton Piotroski of counsel), for Minalie Chen, Jackson Hsieh and Vella Interiors, Inc., res — Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for 115 Central Park West Corporation and Akam Associates, Inc., res — ORDER, SUPREME COURT, NEW YORK COUNTY (JEFFREY K. OING, J.), ENTERED SEPTEMBER 20, 2011, WHICH, TO THE EXTENT APPEALED FROM AS LIMITED BY THE BRIEFS, GRANTED THE MOTION OF DEFENDANT VELLA INTERIORS, INC., AND THE CROSS MOTION OF DEFENDANTS 115 CENTRAL PARK WEST CORPORATION AND AKAM ASSOCIATES, INC., FOR SUMMARY JUDGMENT DISMISSING THE LABOR LAW §241(6) CLAIMS AS AGAINST THEM, UNANIMOUSLY AFFIRMED, WITHOUT COSTS. PLAINTIFF, A PAINTER EMPLOYED BY A SUBCONTRACTOR ON A HOME RENOVATION PROJECT, WAS INJURED WHEN HE FELL OFF OF THE LADDER ON WHICH HE WAS WORKING. WITH ONE EXCEPTION (see Industrial Code [12 NYCRR] §23-1.21[e]), plaintiff relied upon sufficiently specific Industrial Code regulations to form the predicate for his Labor Law §241(6) claims (Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 878 ). However, the specific provisions upon which he relied, which relate to ladder maintenance and slippery conditions, are inapplicable to the facts of this case (see 12 NYCRR 23-1.7[d], 23-1.21[b][ii], [iv],  [ii]; [e]). Indeed, plaintiff testified that he properly opened and set up the eightto nine-foot ladder, that the aluminum side supports were in working order, and that the ladder had four rubber footings. There is no evidence of a slippery floor or that the masonite, which covered the ceramic floor, was a foreign substance that caused a slippery footing. PLAINTIFF FAILED TO PRESERVE HIS CLAIM THAT DEFENDANTS VIOLATED INDUSTRIAL CODE (12 NYCRR) §§23-1.21(B)(1) AND 23-1. .7(E)(2) (see McMahon v. Durst, 224 AD2d 324, 324 [1st Dept 1996]), and we decline to review it. Were we to review the claim, we would reject it, as both sections are inapplicable. Plaintiff testified that he cleared away the electrical coils, boxes and other materials from the work area before beginning his work (see 12 NYCRR 23-1.7[e]), and there is no evidence that the ladder was incapable of supporting four times the maximum load intended to be supported thereon (see 12 NYCRR 23-1.7 [b] ). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. TOM, J.P., ANDRIAS, FREEDMAN, GISCHE, JJ. 8968. MERCEDES COLWIN, plf-res, v. BRUCE KATZ, M.D. def-ap, JUVA SKIN AND LASER CENTER, INC., def — Dwyer & Taglia, New York (Peter R. Taglia of counsel), for ap — Pollack Pollack Isaac & De Cicco, LLP, New York (Jillian Rosen of counsel), for res — Order, Supreme Court, New York County (Alice Schlesinger, J.), entered August 15, 2012, which denied defendants Bruce Katz, M.D. and Bruce Katz, M.D., P.C.'s motion to compel plaintiff to furnish certain medical authorizations and to serve a further bill of particulars specifying her claims, unanimously modified, on the law, defendants' motion granted to the extent that it sought to compel plaintiff to furnish authorizations for those portions of her dental records about her medical history, and otherwise affirmed, without costs.
In this medical malpractice action, plaintiff alleges that defendant dermatologist Bruce Katz, M.D. caused her to suffer an "aggravation of a pre-existing latent and asymptomatic degenerative condition." Accordingly, defendants sought authorizations for those portions of plaintiff's dental records that discuss her medical history. Inasmuch as plaintiff has clearly voluntarily put her prior medical condition at issue (CPLR 4504[a]; see Dillenbeck v. Hess, 73 NY2d 278, 283-284 ), such disclosure is material and necessary for the defense of this action so that defendants may ascertain her condition prior to being treated by Dr. Katz (CPLR 3101[a]; see McGlone v. Port Auth. of N.Y. & N.J., 90 AD3d 479, 480 [1st Dept 2011]; Rega v. Avon Prods., Inc., 49 AD3d 329, 330 [1st Dept 2008]). Contrary to plaintiff's contention, defendants' demand is tailored, directed at relevant material, and is not tantamount to a fishing expedition (see Ford v. Rector, Church-Wardens, Vestrymen of Trinity Church in the City of N.Y., 81 AD3d 502 [1st Dept 2011]).
It was not an improvident exercise of discretion for Supreme Court to deny those branches of defendants' motion which sought to compel plaintiff to furnish a more specific supplemental bill of particulars and to strike plaintiff's initial bill of particulars. As we noted on this matter's prior appeal,"[t] he purpose of a bill of particulars is to amplify pleadings... and prevent surprise at trial" (90 AD3d 516, 516 [1st Dept 2011]), which plaintiff's supplemental bill of particulars adequately does (see Torres v. New York City Tr. Auth., 78 AD3d 419, 420 [1st Dept 2010]; Spiegel v. Gingrich, 74 AD3d 425, 426 [1st Dept 2010]). The mere fact that it incorporates the initial bill of particulars, which contained boilerplate averments, is an insufficient ground for disturbing Supreme Court's determination.
This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.