Opinion
2013-04-3
Nicholas GRAZIANO, Jr., respondent, v. Danielle CAGAN, et al., appellants.
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., and Arthur R. Simuro of counsel), for appellants. Jason C. Altman, Melville, N.Y., for respondent.
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., and Arthur R. Simuro of counsel), for appellants. Jason C. Altman, Melville, N.Y., for respondent.
DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Spinner, J.), dated January 9, 2012, which denied their motion pursuant to CPLR 3124 to compel the plaintiff to provide an authorization for the release of his social security disability records.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the defendants' motion pursuant to CPLR 3124 to compel the plaintiff to provide an authorization for the release of his social security disability records is granted.
“[A] party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue” ( Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456–457, 470 N.Y.S.2d 122, 458 N.E.2d 363 [citation omitted]; seeCPLR 3121[a]; Dillenbeck v. Hess, 73 N.Y.2d 278, 539 N.Y.S.2d 707, 536 N.E.2d 1126;Avila v. 106 Corona Realty Corp., 300 A.D.2d 266, 267, 750 N.Y.S.2d 764). The plaintiff failed to meet his burden of establishing that he did not waive the privilege ( see Corbey v. Allam, 58 A.D.3d 667, 668, 871 N.Y.S.2d 712;Bobrowsky v. Toyota Motor Sales U.S.A., 261 A.D.2d 349, 689 N.Y.S.2d 183,cert. denied531 U.S. 829, 121 S.Ct. 80, 148 L.Ed.2d 42). The plaintiff's contention that he did not make a claim for psychological or psychiatric injury is belied by the pleadings, which affirmatively placed the plaintiff's mental condition in issue by alleging the need to take prescription narcotic medications ( see O'Rourke v. Chew, 84 A.D.3d 1193, 923 N.Y.S.2d 875;DeLouise v. S.K.I. Wholesale Beer Corp., 79 A.D.3d 1092, 1093, 913 N.Y.S.2d 774;Abdalla v. Mazl Taxi, Inc., 66 A.D.3d 803, 804, 887 N.Y.S.2d 250). In addition, the social security disability records are material and necessary to the issue of damages, if any, recoverable for a claimed loss of enjoyment of life ( see Azznara v. Strauss, 81 A.D.3d 578, 915 N.Y.S.2d 868;Amoroso v. City of New York, 66 A.D.3d 618, 887 N.Y.S.2d 163;Steward v. New York City Hous. Auth., 302 A.D.2d 449, 753 N.Y.S.2d 748;Coddington v. Lisk, 249 A.D.2d 817, 818, 671 N.Y.S.2d 826). Accordingly, the defendants' motion to compel the plaintiff to provide an authorization for the release of his social security disability records should have been granted.