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 (seeFriend 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 (seeThompson v. Pibly Residential Programs, Inc., 69 A.D.3d 453, 454, 892 N.Y.S.2d 395 [1st Dept. 2010] ).
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 [3d Dept 2004]; Mayer v Albany Med. Ctr. Hosp., 37 A.D.2d 1011, 1011 [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
In cases such as the one before us, "[i]nformation concerning medical diagnosis and treatment is privileged and may not be disclosed absent a showing that a compelling interest overrides the privilege, or that the interests of justice significantly outweigh the need for and the right of a mentally disabled patient to confidentiality" (Exelbert v. State of New York, 140 A.D.2d 665, 665, 529 N.Y.S.2d 15 [1988] ; see CPLR 4504 ; Mental Hygiene Law § 33.13[c][1] ; [e]; J.Z. v. South Oaks Hosp., 67 A.D.3d 645, 645–646, 886 N.Y.S.2d 915 [2009] ; Sohan v. Long Is. Coll. Hosp., 282 A.D.2d 597, 598, 723 N.Y.S.2d 384 [2001] ). Here, many of the withheld documents have already been disclosed to claimants in redacted form, and our in camera review confirms that claimants have obtained the relevant "information of a nonmedical nature relating to any prior assaults or similar violent behavior" contained in them (J.Z. v. South Oaks Hosp., 67 A.D.3d at 646, 886 N.Y.S.2d 915 ; see Mayer v. Albany Med. Ctr. Hosp., 37 A.D.2d 1011, 1011, 325 N.Y.S.2d 517 [1971] ). While there are additional references in the withheld portions of the documents regarding the reasons why the assailant attacked Bellamy, the interests of justice do not significantly outweigh his right to have that privileged diagnostic information remain confidential (see Exelbert v. State of New York, 140 A.D.2d at 665, 529 N.Y.S.2d 15 ; Matter of Ashford v. Brunswick Psychiatric Ctr., 90 A.D.2d 848, 848, 456 N.Y.S.2d 96 [1982] ; Homere v. State of New York, 41 A.D.2d 797, 797, 341 N.Y.S.2d 801 [1973] ).
( County of Suffolk v. Long Is. Power Auth., 100 A.D.3d 944, 946, 954 N.Y.S.2d 619, quoting CPLR 3103[a]; see Accent Collections, Inc. v. Cappelli Enters., Inc., 84 A.D.3d 1283, 924 N.Y.S.2d 545). Here, the plaintiff's request to conduct an on-site inspection of the hospital's CDU was not a request to discover medical information ( see Mayer v. Albany Med. Ctr. Hosp., 37 A.D.2d 1011, 325 N.Y.S.2d 517), and may yield evidence that is “material and necessary” to the prosecution of this action (CPLR 3101[a]; see Montalvo v. CVS Pharmacy, Inc., 81 A.D.3d 611, 612, 915 N.Y.S.2d 865). Thus, the Supreme Court improvidently exercised its direction in precluding any on-site inspection of the CDU by granting the defendants' cross motion for a protective order.
In addition, the Supreme Court erred in directing the defendant to redact confidential information. The proper procedure is for the Supreme Court to conduct an in camera review of the assailant's records, and determine if they contain information of a nonmedical nature relating to any prior assaults or similar violent behavior by the assailant that should be disclosed (see, Moore v. St. John's Episcopal Hosp., 89 A.D.2d 618; Brier v. State of New York, 95 A.D.2d 788; Villano v. State of New York, 127 Misc.2d 761; see also, Lee v. New York City Tr. Auth., 257 A.D.2d 611; Matter of Ashford v. Brunswick Psychiatric Ctr., 90 A.D.2d 848; Mayer v. Albany Med. Center Hosp., 37 A.D.2d 1011). Accordingly, the matter is remitted to the Supreme Court, Kings County, to determine whether the records should be disclosed, and, if necessary, to conduct an in camera review of the assailant's records.
This claim for damages is premised on an alleged assault of claimant Trudy Exelbert by a nonparty patient under the care of the State of New York. By order dated October 7, 1986, the Court of Claims correctly redacted all medical information from the State's records concerning that patient before disclosure of those records to the claimants (cf., Brier v State of New York, 95 A.D.2d 788; see, Matter of Ashford v Brunswick Psychiatric Center, 90 A.D.2d 848; Moore v St. John's Episcopal Hosp., 89 A.D.2d 618; Homere v State of New York, 41 A.D.2d 797; Katz v State of New York, 41 A.D.2d 879; Mayer v Albany Med. Center Hosp., 37 A.D.2d 1011). Information concerning medical diagnosis and treatment is privileged (CPLR 4504) and may not be disclosed absent a showing that a compelling interest overrides the privilege (Matter of Camperlengo v Blum, 56 N.Y.2d 251; Matter of Jenkins v Martin, 99 A.D.2d 811; Perry v Fiumano, 61 A.D.2d 512), or that the interests of justice significantly outweigh the need for and the right of a mentally disabled patient to confidentiality (see, Mental Hygiene Law § 33.13 [c] [1]; see also, Mental Hygiene Law § 33.01; cf., Katz v State of New York, supra).
Accordingly, Special Term erred in permitting discovery and inspection of all his records. However, plaintiff is entitled to any nonmedical information in Delain's hospital records, particularly such information as relates to any prior assaults or similar violent behavior, to aid plaintiff in establishing knowledge on the part of defendants (see Katz v State of New York, 41 A.D.2d 879; Mayer v. Albany Med. Center Hosp., 37 A.D.2d 1011). All medical information in the records is unqualifiedly privileged under the physician-patient privilege (see CPLR 4504, subd [a]; Public Health Law, § 17; § 2803-c, subd 3, pars b, f; § 2805-g, subd 3).
Claimant is entitled only to nonmedical information contained in the hospital records. (See Homere v State of New York, 41 A.D.2d 797; Katz v State of New York, 41 A.D.2d 879; Mayer v Albany Med. Center Hosp., 37 A.D.2d 1011.) Order modified, on the law and the facts, so as to grant the motion for discovery of parole board records only to the extent that they contain final determinations, and, as so modified, affirmed, without costs.
The second motion, on the other hand, which was denied without explanation, should have been granted. The information sought was sufficiently limited so as not to violate the privilege, since it did not include medical data ( Homere v. State of New York, 41 A.D.2d 797; Mayer v. Albany Med. Center Hosp., 37 A.D.2d 1011), and there is nothing in the provisions of the Mental Hygiene Law prohibiting disclosure of the records of State institutions pursuant to court order (cf. Mental Hygiene Law, §§ 20, 34, subd. 9). The State, however, argues that claimant's second motion was for reargument of the first motion, and that the denial thereof is not appealable.
This is an appeal from so much of an order of the Court of Claims, entered July 25, 1972, as granted claimants' motion to compel the State to produce the medical records of claimants' assailant. This court in Mayer v. Albany Med. Center Hosp. ( 37 A.D.2d 1011) carefully distinguished between medical and nonmedical information contained in hospital records and stated that such nonmedical information contained therein was subject to disclosure. The attorney for the claimants, in his supporting affirmation, sought relief pursuant to the wording of our decision and the Attorney-General, in an affidavit agreed that claimants were entitled to examination of the hospital record "excepting therefrom entries regarding propensities, diagnosis and prognosis".