Opinion
2011-11-29
Petros PALIOURAS, respondent, v. Nicholas J. DONOHUE, et al., appellants.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Nicole Feder of counsel), for appellants. Ateshoglou & Aiello, P.C., New York, N.Y. (Steven D. Ateshoglou of counsel), for respondent.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Nicole Feder of counsel), for appellants. Ateshoglou & Aiello, P.C., New York, N.Y. (Steven D. Ateshoglou of counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered October 19, 2010, as granted those branches of the plaintiff's motion which were for a protective order pursuant to CPLR 3103(a) precluding the defendants from obtaining authorizations for the plaintiff's medical records relating to the underlying injury for a certain time period and, in effect, to vacate so much of a preliminary conference order of the same court dated June 9, 2010, as directed the plaintiff to provide authorizations for all medical providers relevant to the underlying injury for that time period.
ORDERED that the order is affirmed insofar as appealed from, with costs.
A party or parties seeking to inspect a plaintiff's medical records must first demonstrate that the plaintiff's physical or mental condition is “in controversy” within the meaning of CPLR 3121(a), and it is only after such an evidentiary showing that discovery may proceed under the statute ( see Dillenbeck v. Hess, 73 N.Y.2d 278, 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126; Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 250 N.E.2d 857; Neferis v. DeStefano, 265 A.D.2d 464, 697 N.Y.S.2d 108). Even where this preliminary burden has been satisfied, discovery may still be precluded where the information requested is privileged and, thus, exempted from disclosure pursuant to CPLR 3101(b) ( see Dillenbeck v. Hess, 73 N.Y.2d at 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126; Lombardi v. Hall, 5 A.D.3d 739, 740, 774 N.Y.S.2d 560; Navedo v. Nichols, 233 A.D.2d 378, 379, 650 N.Y.S.2d 15). Once the privilege is validly asserted, it must be recognized and the information sought may not be disclosed unless it is demonstrated that the privilege has been waived ( see CPLR 3101[b], 4504[a]; Dillenbeck v. Hess, 73 N.Y.2d at 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126; Koump v. Smith, 25 N.Y.2d at 294, 303 N.Y.S.2d 858, 250 N.E.2d 857).
Here, the defendants failed to sustain their initial burden of demonstrating that the plaintiff's physical or mental condition is “in controversy” in this action ( see Koump v. Smith, 25 N.Y.2d at 297, 303 N.Y.S.2d 858, 250 N.E.2d 857; McConnell v. Santana, 30 A.D.3d 481, 482, 816 N.Y.S.2d 372; Lombardi v. Hall, 5 A.D.3d at 740, 774 N.Y.S.2d 560; Navedo v. Nichols, 233 A.D.2d at 379, 650 N.Y.S.2d 15). Furthermore, the plaintiff validly asserted the physician-patient privilege since he did not affirmatively place his physical or mental condition in issue in this action ( see Koump v. Smith, 25 N.Y.2d at 297, 303 N.Y.S.2d 858, 250 N.E.2d 857; McConnell v. Santana, 30 A.D.3d at 482, 816 N.Y.S.2d 372; Lombardi v. Hall, 5 A.D.3d at 740, 774 N.Y.S.2d 560; Navedo v. Nichols, 233 A.D.2d at 379, 650 N.Y.S.2d 15).
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for a protective order pursuant to CPLR 3103(a) precluding the defendants from obtaining authorizations for the plaintiff's medical records relating to the underlying injury for a certain time period and, in effect, to vacate that portion of the preliminary conference order dated June 9, 2010, as directed him to provide authorizations for all medical providers relevant to the underlying injury for that time period.