Contrary to plaintiff's further contention, the court did not err in denying his motion to compel two other representatives of Aria to appear for second depositions. Here, the questions that plaintiff intended to ask those witnesses during the second depositions either called for privileged information, or were not material or relevant to plaintiff's personal injury action, or were asked and answered during those witnesses' first depositions (see generally CPLR 3101 ; Brown v. Home Depot, U.S.A. , 304 A.D.2d 699, 699–700, 758 N.Y.S.2d 378 [2d Dept. 2003] ; MS Partnership v. Wal–Mart Stores , 273 A.D.2d 858, 858, 709 N.Y.S.2d 290 [4th Dept. 2000] ; Shapiro v. Levine , 104 A.D.2d 800, 800–801, 479 N.Y.S.2d 1006 [2d Dept. 1984] ). "Absent an abuse of discretion, we will not disturb the court's control of the discovery process" ( MS Partnership , 273 A.D.2d at 858, 709 N.Y.S.2d 290 ; see generallyKern v. City of Rochester [appeal No. 1], 267 A.D.2d 1026, 1026, 700 N.Y.S.2d 320 [4th Dept. 1999] ), and we perceive no abuse of discretion here.
Here, defendants failed to meet their burden of establishing that "the presence of the attorney or other representative will `impair the validity and effectiveness'" of the neuropsychological examination (A.W., 34 AD3d at 1238, quoting Matter of Alexander L., 60 NY2d 329, 332). We further conclude, however, that the court abused its discretion in refusing to compel plaintiff to disclose all medical and psychological records and reports of her treating providers and to provide authorizations to obtain copies of any records of her treating providers with respect to neuropsychological and IQ testing before her neuropsychological examination is conducted by defendants' expert ( cf. Marable v Hughes, 38 AD3d 1344; see generally MS Partnership v Wal-Mart Stores, 273 AD2d 858; Andruszewski v Cantello, 247 AD2d 876). We therefore modify the order accordingly.
Contrary to defendant's contention, Supreme Court properly denied that part of his motion. “ ‘Absent an abuse of discretion, we will not disturb the court's control of the discovery process' ” ( Marable v. Hughes, 38 A.D.3d 1344, 1345, 830 N.Y.S.2d 686;see Hann v. Black, 96 A.D.3d 1503, 1504, 946 N.Y.S.2d 722;MS Partnership v. Wal–Mart Stores, 273 A.D.2d 858, 858, 709 N.Y.S.2d 290). Turning to plaintiff's cross appeal, we note that plaintiff contends that the court abused its discretion in conditionally granting that part of defendant's motion to preclude plaintiff from presenting evidence at trial concerning his mental or physical condition unless plaintiff provided defendant with speaking authorizations for plaintiff's medical providers and educators. Plaintiff further contends that the court erred in denying his cross motion for a protective order with respect to the speaking authorizations and for costs incurred because of the allegedly improper cancellation by defendant's attorney of scheduled depositions of plaintiff and his mother.
That order was patently inappropriate on its face in that it required one defendant, J & R Schugel, to produce a codefendant over whom it had no control. The order went much further than simply requiring J & R Schugel to use its “best efforts” to produce Black ( MS Partnership v. Wal–Mart Stores, 273 A.D.2d 858, 858, 709 N.Y.S.2d 290). Contrary to the majority's position, J & R Schugel specifically raised its lack of control over Black when it opposed plaintiffs' motion.
We agree with plaintiff, however, that the state law applies and thus that disclosure by court order is permitted only "upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality" (Mental Hygiene Law § 33.13 [c] [1]; see § 22.05). Here, the court failed to make the requisite finding that the interests of justice significantly outweighed the need for confidentiality ( see e.g. Matter of Michelle HH., 18 AD3d 1075, 1077-1078; Sohan v Long Is. Coll. Hosp., 282 AD2d 597), and we conclude that Supreme Court abused its discretion in ordering plaintiff to provide defendant with authorizations compliant with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) ( 42 USC § 1320d et seq.) permitting release of her alcohol treatment records ( see generally MS Partnership v Wal-Mart Stores, 273 AD2d 858). Furthermore, the court erred in failing to recognize a serious deficiency in defendant's submissions in support of the motion.
Alternatively, defendants sought an order of preclusion. Plaintiff asserted in opposition to the motion that she had never sought treatment from seven of the providers, and that the remaining 11 providers had treated her for injuries and conditions unrelated to the injuries at issue in this action. We agree with plaintiff that Supreme Court abused its discretion in granting defendants' motion to compel plaintiff to provide the authorizations ( see MS Partnership v Wal-Mart Stores, 273 AD2d 858). It is well settled that, although "[a] plaintiff who commences a personal injury action has waived the physician-patient privilege to the extent that his physical or mental condition is affirmatively placed in controversy" ( Carter v Fantauzzo, 256 AD2d 1189, 1190; see Mayer v Cusyck, 284 AD2d 937, 938), the waiver of that privilege "`does not permit discovery of information involving unrelated illnesses and treatments'" ( Carter, 256 AD2d at 1190).
Supreme Court properly granted the motion of Daniel J. Hughes and Deborah L. Kachelmeyer, also known as Deborah L. Hughes (defendants), seeking, inter alia, to compel plaintiff to provide to defendants all "records and/or reports of neuropsychological or IQ testing" of her daughter prior to her daughter's examination by defendants' expert. "Absent an abuse of discretion, we will not disturb the court's control of the discovery process" ( MS Partnership v Wal-Mart Stores, 273 AD2d 858, 858; see Andruszewski v Cantello, 247 AD2d 876), and we perceive no abuse of discretion in this case ( see generally 22 NYCRR 202.17 [b]). Defendants have conceded that they are not seeking reports that are generated by expert witnesses within the purview of CPLR 3101 (d) (1) (i), nor does the order on appeal encompass such reports.
Unlike the cases upon which plaintiff relies, defendants here have a proprietary interest in the materials sought, and, in addition, those materials may contain privileged information ( cf. Matter of Oncor Communications v. State of New York, 218 A.D.2d 60, 62; 38-14 Realty Corp. v. New York City Dept. of Consumer Affairs, 103 A.D.2d 804). Turning to the merits of defendant's motion to quash, a trial court has broad discretion in supervising disclosure, and absent an abuse of that discretion, the court's exercise of such authority will not be disturbed ( see Gadley v. U.S. Sugar Co., 259 A.D.2d 1041, 1042; see also MS Partnership v. Wal-Mart Stores, 273 A.D.2d 858). Moreover, where, as here, additional discovery is sought after plaintiff has filed a note of issue, the party seeking additional discovery must demonstrate that "unusual or unanticipated circumstances develop[ed] subsequent to the filing *** which require additional pretrial proceedings to prevent substantial prejudice" ( 22 NYCRR 202.21 [d]; see Di Matteo v. Grey, 280 A.D.2d 929, 930). Particularly in light of defendant's affirmative showing to the contrary, plaintiff failed to demonstrate that Becker may have information that is "material and necessary" to the prosecution of this action (CPLR 3101 [a] [1], [4]; see e.g. Maxwell v. Snapper, Inc., 249 A.D.2d 374; King, 198 A.D.2d at 748). With respect to Dr. Leone, his report constitutes material prepared in anticipation of litigation and is therefore conditionally privileged ( see CPLR 3101 [d] [2]; Renucci v. Mercy Hosp., 124 A.D.2d 796, 797). Plaintiff failed to show that she has a substantial need for that report or that she
ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff failed to adequately show that the designated correction officers possess knowledge of the facts bearing on the issues in this case (see MS Partnership v. Wal-Mart Stores, 273 A.D.2d 858; Defina v. Brooklyn Union Gas Co., 217 A.D.2d 681; Dwyer v. State, 158 A.D.2d 660). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was to depose these officers (see CPLR 3101). FEUERSTEIN, J.P., GOLDSTEIN, H. MILLER and RIVERA, JJ., concur.
same hereby is unanimously modified on the law by denying that part of plaintiffs' cross motion seeking to compel defendant Town of Concord to disclose the unredacted diary of a former employee of defendant Town of Concord and as modified the order is affirmed without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Memorandum: Supreme Court properly granted that part of plaintiffs' cross motion seeking leave to conduct further depositions of three present or former employees of defendant Town of Concord (Town). It is well settled that the court is vested with broad authority to supervise discovery ( see Baliva v. State Farm Mut. Auto. Ins. Co., 275 A.D.2d 1030, 1031; Andruszewski v. Cantello, 247 A.D.2d 876; Nitz v. Prudential-Bache Sec., 102 A.D.2d 914, 915), and the court's exercise of that authority should not be disturbed absent a clear abuse of discretion ( see Andruszewski, 247 A.D.2d at 876-877; see also MS Partnership v. Wal-Mart Stores, 273 A.D.2d 858, 858). Here, the Town provided certain documents needed for the depositions of the three witnesses at issue either just prior to the first depositions of those witnesses or at the time of those depositions, and thus we conclude that the court did not abuse its discretion in permitting the further depositions of those witnesses.