Bongiorno v. Livingston
| Citation | 20 A.D.3d 379,2005 NY Slip Op 05756,799 N.Y.S.2d 98 |
| Decision Date | 05 July 2005 |
| Docket Number | 2004-05104. |
| Parties | MARY ANN BONGIORNO, Respondent-Appellant, v. JOHN LIVINGSTON et al., Appellants-Respondents. |
| Court | New York Supreme Court Appellate Division |
Ordered that on the Court's own motion, the defendants' notice of appeal is treated as an application for leave to appeal from so much of the order dated March 16, 2004, as granted that branch of the plaintiff's motion which was to compel disclosure to the extent of directing an in camera review of the medical records demanded in item number 23, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law and as a matter of discretion, by (1) deleting the provision thereof granting that branch of the motion which was to compel disclosure of the medical records contained in item number 23 to the extent of directing an in camera review of those records, and substituting therefor a provision denying that branch of the plaintiff's motion and granting that branch of the defendants' cross motion which was for a protective order as to that portion of the demand, and (2) deleting the provision thereof granting that branch of the plaintiff's motion which was to direct the defendants to provide, in response to item 25, the names and addresses of all psychiatrists and psychologists who treated the defendant John Livingston prior to and during the alleged medical malpractice, and substituting therefor a provision granting that branch of the plaintiff's motion to the extent of directing the defendant John Livingston to provide the plaintiff in response to item 25 with the names and addresses of the psychiatrists and psychologists who treated him during the time of the alleged malpractice; as so modified, the order is affirmed, with costs to the defendants.
No appeal lies as of right from an order directing an in camera inspection of materials claimed to be privileged in aid of determining a motion to compel discovery (see CPLR 5701 [a] [2] [v]; Navedo v Nichols, 233 AD2d 378 [1996]).
Discovery and inspection of a defendant's mental or physical condition contained in his or her medical records is permitted only when the defendant's mental or physical condition has been placed "in controversy" (see CPLR 3121 [a]; Dillenbeck v Hess, 73 NY2d 278, 286-287 [1989]; Lombardi v Hall, 5 AD3d 739, 739-740 [2004]). Even when this preliminary burden has been satisfied discovery may still be precluded where the information requested is subject to the physician-patient privilege (see CPLR 3101 [b]; 4504 [a]; Dillenbeck v Hess, supra at 287; Lombardi v Hall, supra at 740; Neferis v DeStefano, 265 AD2d 464, 465 [1999]). Although a defendant may waive this privilege when he or she affirmatively places his or her mental or physical condition in issue, to effect a waiver, a defendant must do more than simply deny the allegations in the complaint (see Dillenbeck v Hess, supra at 288; Koump v Smith, 25 NY2d 287, 294 [1969]; Grafi v Solomon, 274 AD2d 451, 452 [2000]). He or she must affirmatively assert the condition "either by way of counterclaim or to excuse the conduct complained of by the...
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