Abraha v. Adams

• Citation: 51 N.Y.S.3d 754,148 A.D.3d 1730
• Parties: Luam K. ABRAHA, Plaintiff–Respondent–Appellant, v. Cristine M. ADAMS, M.D., Jeffrey W. Myers, D.O., Erie County Medical Center Corporation, University Emergency Medical Services, Inc., Defendants–Appellants–Respondents, et al., Defendant.
• Decision Date: 31 March 2017
• Court: New York Supreme Court Appellate Division

148 A.D.3d 1730
51 N.Y.S.3d 754

Luam K. ABRAHA, Plaintiff–Respondent–Appellant,
v.
Cristine M. ADAMS, M.D., Jeffrey W. Myers, D.O., Erie County Medical Center Corporation, University Emergency Medical Services, Inc., Defendants–Appellants–Respondents, et al., Defendant.

Supreme Court, Appellate Division, Fourth Department, New York.

March 31, 2017.

51 N.Y.S.3d 755

Gibson McAskill & Crosby, LLP, Buffalo (Michael J. Willett of Counsel), for Defendants–Appellants–Respondents Cristine M. Adams, M.D., Jeffrey W. Myers, D.O. and University Emergency Medical Services, Inc.

Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Elizabeth G. Adymy of Counsel), for Defendant–Appellant–Respondent Erie County Medical Center Corporation.

Francis M. Letro, Buffalo (Carey C. Beyer of Counsel), for Plaintiff–Respondent–Appellant.

PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained as a result of medical malpractice committed by, inter alia, Cristine M. Adams, M.D., Jeffrey W. Myers, D.O., and University Emergency Medical Services, Inc. (Adams defendants) and Erie County Medical Center Corporation (ECMC) in their treatment of her after she was assaulted by her estranged husband. ECMC and the Adams defendants (collectively, defendants) appeal and plaintiff cross-appeals from an order in which Supreme Court, after an in camera review of plaintiff's records from the shelter for domestic violence victims where she was living at the time of the assault, ordered disclosure of redacted copies of certain records, but determined that "[t]he bulk of the records are not subject to disclosure."

We first address plaintiff's cross appeal. Contrary to her contention, the shelter records are not protected by any privilege, and they are thus subject to disclosure to the extent that they are material and necessary to the defense of the action (see Dominique D. v. Koerntgen, 107 A.D.3d 1433, 1434, 968 N.Y.S.2d 751 ; see generally CPLR 3101[a] ; Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406–407, 288 N.Y.S.2d 449, 235 N.E.2d 430 ). Even assuming, arguendo, that the records were prepared by licensed social workers, which is not evident from the records themselves, we conclude that plaintiff waived any privilege afforded by

51 N.Y.S.3d 756

CPLR 4508 by affirmatively placing her medical and...