Budano v. Gurdon

• Decision Date: 24 July 2012
• Citation: 97 A.D.3d 497,948 N.Y.S.2d 612,2012 N.Y. Slip Op. 05704
• Parties: Joseph BUDANO, Plaintiff–Respondent, v. Andrew GURDON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 497
948 N.Y.S.2d 612
2012 N.Y. Slip Op. 05704

Joseph BUDANO, Plaintiff–Respondent,
v.
Andrew GURDON, Defendant–Appellant.

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

July 24, 2012.

[948 N.Y.S.2d 613]

Lester Schwab Katz & Dwyer, LLP, New York (Lawrence A. Steckman of counsel), for appellant.

O'Hare Parnagian LLP, New York (James Trainor of counsel), for respondent.

MAZZARELLI, J.P., SAXE, MOSKOWITZ, MANZANET–DANIELS, ROMÁN, JJ.

[97 A.D.3d 497]Order, Supreme Court, Bronx County (Laura Douglas, J.), entered June 11, 2010, which denied defendant's motion to, among other things, compel plaintiff to authorize the release of medical records pertaining to alcohol and drug treatment, mental health information, and HIV-related information, if any, and granted plaintiff's cross motion for a protective order as to those records, unanimously affirmed, without costs.

[948 N.Y.S.2d 614]

Plaintiff claims that he sustained physical injuries when he slipped and fell on a staircase in a building owned by defendant. Plaintiff alleged in his supplemental bill of particulars that his injuries “are believed to be permanent in their nature and/or consequences.” Plaintiff, who was unemployed at the time of the incident, also alleged that he believed that the accident caused him to be incapacitated from employment and that such incapacitation would be permanent.

At a discovery status conference, defendant requested that the court order plaintiff to authorize the release of his records from Lincoln Medical and Mental Health Center, where plaintiff was treated after the accident, relating to plaintiff's “substance abuse and/or substance treatments.” The court denied the request. Plaintiff subsequently executed an authorization form and served it on defendant, but declined to check the boxes on the form specifically permitting inspection of records related to alcohol and drug treatment, mental health information and HIV-related information.

Defendant moved to compel plaintiff to authorize the release of such health information. In the alternative, defendant requested an in camera inspection of plaintiff's Lincoln Hospital records, to be attended by the parties, or permission to serve a judicial subpoena directing Lincoln Hospital to produce such records. In support of the motion, counsel asserted that plaintiff had “admitted at his deposition that he has a drug and alcohol history for which he has received treatment in detoxification programs” and that plaintiff had “received such treatment before and after the subject incident.” However, counsel failed to attach a deposition transcript or any other documents establishing those facts. Counsel argued that plaintiff's alleged history of substance abuse raised doubt as to the cause of his fall. He further contended that plaintiff's alleged substance abuse could “have...