MEMORANDUM AND ORDER
Appeal from an order and an amended order of the Supreme Court (Farley, J.), entered January 27, 2021 and April 9, 2021 in St. Lawrence County, which, among other things, denied plaintiffs motions to renew and to strike the note of issue.
The facts of this case have been fully discussed in (Delosh v. Amyot, 186 A.D.3d 1793, 130 N.Y.S.3d 129 [2020]). Plaintiffs son was killed while riding a bicycle when he collided with a vehicle driven by Ellen M. Amyot. Some months later, Amyot and her husband, the only other witness to the collision, died of causes unrelated to the accident. Plaintiff then commenced this wrongful death action, individually and as administrator of her sons estate. In the course of litigation, plaintiff moved to compel production of certain of Amyots medical and pharmacy records, and Supreme Court denied that motion. Plaintiff thereafter moved to renew her motion to compel and also moved to strike defendants note of issue. Supreme Court denied those motions as well, prompting this appeal by plaintiff.
1
“A motion for leave to renew ․ shall be based upon new facts not offered on the prior motion that would change the prior determination ․ and ․ shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e]; see Matter of Piacente v. DiNapoli, 198 A.D.3d 1026, 1027, 155 N.Y.S.3d 463 [2021]). This Court “generally decline[s] to disturb the decision to grant or deny a motion to renew absent an abuse of the trial courts discretion” (Kahn v. Levy, 52 A.D.3d 928, 929, 859 N.Y.S.2d 308 [2008] [internal quotation marks and citations omitted]; see Matter of James H. Supplemental Needs Trusts, 172 A.D.3d 1570, 1575, 101 N.Y.S.3d 477 [2019]).
In support of her motion to renew, plaintiff submitted the deposition transcript and a handwritten note of Sheriffs Deputy Patrick Engle, both of which indicate that, on the date of the accident, Amyot told Engle that she had a prescription for Fentanyl patches. However, recognizing that plaintiff previously submitted evidence of Amyots Fentanyl prescription in connection with her 2018 motion for summary judgment, these latest submissions do not set forth a new fact (see CPLR 2221[e][2]). For this reason, Supreme Court correctly denied plaintiffs motion to renew.
Moreover, plaintiff failed to show that this purported new fact would have changed Supreme Courts prior determination (see CPLR 2221[e][2]). “A party seeking to inspect a defendants medical records must first demonstrate that the defendants physical or mental condition is in controversy” (Peterson v. Estate of Rozansky, 171 A.D.3d 805, 807, 97 N.Y.S.3d 724 [2019] [internal quotation marks and citations omitted]; see CPLR 3121[a]). Here, Amyot told Engle that she was not using the Fentanyl patch on the date of the accident, and Engle testified that there was no suspicion that drugs or alcohol were involved in the accident. Plaintiff pointed to no evidence to the contrary. Accordingly, Supreme Court properly determined that Amyots medical condition was not in controversy, thereby providing an additional basis to deny plaintiffs motion to renew (see Koump v. Smith, 25 N.Y.2d 287, 300, 303 N.Y.S.2d 858, 250 N.E.2d 857 [1969]; Robinson v. Meca, 214 A.D.2d 246, 248, 632 N.Y.S.2d 728 [1995]).
2
In light of the foregoing, plaintiffs motion to strike the note of issue – on the basis that disclosure of the medical and pharmacy records remained outstanding – was also properly denied (see Ireland v. GEICO Corp., 2 A.D.3d 917, 919, 768 N.Y.S.2d 508 [2003]).
ORDERED that the appeal from the order is dismissed, with costs.
ORDERED that the amended order is affirmed, with costs.
FOOTNOTES
1
. Inasmuch as the January 2021 order was superseded by the April 2021 amended order – which was issued to correct a citation – plaintiffs appeal from the January 2021 order must be dismissed (see Matter of Brian W. v. Mary X., 200 A.D.3d 1439, 1441, 161 N.Y.S.3d 380 n. 1 [2021]).
2
. Plaintiff raises the Noseworthy doctrine in support of her argument that she is entitled to Amyots records (see generally Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 [1948]). This doctrine, which establishes a relaxed standard of proof at trial in certain wrongful death actions, is inapplicable to a discovery dispute such as the one at issue here.
Ceresia, J.
Egan Jr., J.P., Colangelo and Fisher, JJ., concur.