Opinion
15448 Index No. 29676/17 Case No. 2021-00580
03-03-2022
Luz CABREJA, as Administratrix for the Estate of Maria Cabreja, Plaintiff–Respondent, v. "John/Jane DOE PHYSICIANS", individually and as employees/agents of Bay Park Center for Nursing and Rehabilitation et al., Defendants, Mosholu Parkway Nursing and Rehabilitation Center, LLC, Defendant–Appellant. [And a Third-Party Action]
Messner Reeves LLP, New York (Lena Brinjikji of counsel), for appellant. Buzin Law, P.C., Purchase (Andrew S. Buzin of counsel), for respondent.
Messner Reeves LLP, New York (Lena Brinjikji of counsel), for appellant.
Buzin Law, P.C., Purchase (Andrew S. Buzin of counsel), for respondent.
Renwick, J.P., Gesmer, Moulton, Rodriguez, Pitt, JJ.
Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered January 22, 2021, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to compel the production of certain treatment records in the possession of defendant/third-party defendant Mosholu Parkway Nursing and Rehabilitation Center, LLC (Mosholu), and denied Mosholu's motion for a protective order regarding those records, unanimously affirmed, without costs.
Plaintiff's decedent, a resident at defendant Bay Park Center for Nursing and Rehabilitation, was allegedly sexually assaulted by a fellow nursing home resident; the fellow resident had previously been a resident at Mosholu, which transferred him to Bay Park. As a result of the alleged assault, plaintiff sued Bay Park and Mosholu, alleging, among other things, negligence and negligent supervision. Bay Park then filed a third-party complaint against Mosholu, alleging that when Mosholu transferred the fellow resident, it failed to disclose that he had been involved in an incident of inappropriate sexual conduct while he lived at Mosholu.
Supreme Court providently exercised its discretion in granting plaintiff's request to compel disclosure and denying Mosholu's cross motion for a protective order. The fellow resident has not waived his right to keep confidential the medical information contained in his hospital records; nonetheless, plaintiff is entitled to any nonmedical information in Mosholu's possession insofar as it relates to any prior assaults or similar violent behavior by the fellow resident, including the time and place and surrounding circumstances for each incident with all medical information redacted (see Friend v. SDTC–Center for Discovery, Inc., 13 A.D.3d 827, 828, 787 N.Y.S.2d 163 [3d Dept. 2004] ; Mayer v. Albany Med. Ctr. Hosp., 37 A.D.2d 1011, 1011, 325 N.Y.S.2d 517 [3d Dept. 1971] ). The fellow resident's treatment records in Mosholu's possession, when redacted so as not to pertain to diagnosis or treatment but only to behavior, are not privileged and may be used to establish Mosholu's prior actual or constructive knowledge of the fellow resident's propensity for violence towards other residents, including plaintiff's decedent (see Thompson v. Pibly Residential Programs, Inc., 69 A.D.3d 453, 454, 892 N.Y.S.2d 395 [1st Dept. 2010] ).