Page 37 - WCBA Appellate Practice Committee CLE May 2024-Handout

pause in the proceeding while a petitioner exhausts his unexhausted state law claims. Additionally, stay
and abeyance orders require conditions including the filing of an amended petitioner upon exhaustion
of state law claims. Thus, this Court found that the stay and abeyance order by the EDNY alleviated any
possibility that the petitioner’s FOIL request would interfere with the federal habeas proceeding.
Accordingly, the respondent failed to establish that the records sought by the petitioner were exempt
from disclosure as it failed to show that disclosure would interfere with the pending federal habeas
proceeding.

CASES TO BE PRESENTED BY CHRISTOPHER, J.

Fadeau v Corona Indus. Corp., 217 AD3d 1 (June 2023) by LaSalle, P.J.

In this action to recover damages for personal injuries sustained in a car accident, the defendants filed an
answer and served the plaintiff with a demand for pre-surgical independent medical examinations.
Thereafter, the plaintiff served a verified bill of particulars stating that as a result of his injuries, he had
undergone surgery prior to the commencement of the action, and that there was a possible need for
future surgery. Several months later, the plaintiff served a supplemental bill of particulars stating that he
had undergone additional surgery as a result of his injuries. The defendants moved, inter alia, to impose
sanctions against the plaintiff for spoliation of evidence, contending that the non-life saving,
nonemergency surgery the plaintiff underwent, without permitting the defendants to conduct a medical
evaluation of his preoperative condition, was spoliation of evidence for which the imposition of sanctions
was warranted. The Supreme Court denied the defendants motion.

The Second Department held that a plaintiff’s action in undergoing surgery without giving the defendants
an opportunity to conduct a presurgical medical examination of the plaintiff’s body cannot be the basis of
sanctions for spoliation of evidence.

Yan v Kalikow Mgt., Inc., 217 AD3d 47 (July 2023) by Maltese, J.

In this action to recover damages for personal injuries, the plaintiff allegedly tripped and fell on the
sidewalk in front of the defendants’ property. After the accident, the plaintiff was taken to the emergency
room, where she was treated by a physician assistant (“PA”). The medical record prepared by the PA
reported that the plaintiff was attempting to enter her automobile on the passenger’s side when she
tripped over a tree branch falling onto her outstretched right arm. According to the defendants, this
statement was inconsistent with the allegations in the plaintiff’s complaint and deposition testimony. The
defendants’ counsel served two demands for an authorization pursuant to Arons v Jutkowitz (9 NY3d 393)
to permit counsel to interview the PA, but the plaintiff did not provide the authorization. Thereafter, the

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