Colantonio v. Mercy Med. Ctr.

• Decision Date: 09 January 2013
• Citation: 2013 N.Y. Slip Op. 00060,102 A.D.3d 649,958 N.Y.S.2d 177
• Parties: Anthony COLANTONIO, etc., appellant, v. MERCY MEDICAL CENTER, et al., respondents.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 649

958 N.Y.S.2d 177

2013 N.Y. Slip Op. 00060

Anthony COLANTONIO, etc., appellant,

v.MERCY MEDICAL CENTER, et al., respondents.

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

Jan. 9, 2013.

Agoglia, Holland & Agoglia, P.C., Jericho, N.Y. (E. Kevin Agoglia of counsel), for appellant.

Ward Greenberg Heller & Reidy LLP, Rochester, N.Y. (Thomas S. D'Antonio and Anitra Das of counsel), for respondents.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SYLVIA HINDS–RADIX, JJ.

In an action to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated August 1, 2011, which, after an in camera inspection, denied his motion to compel the defendants to produce certain documents listed in their privilege log and supplemental privilege log.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof denying those branches of the plaintiff's motion which were to compel the defendants to produce documents designated as numbers 88 and 89 in the defendants' privilege log and number 11 in the defendants' supplemental privilege log, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

“ ‘Generally, the trial court is afforded broad discretion in supervising disclosure and its determinations will not be disturbed unless that discretion has been clearly abused ... However, the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse’ ” ( Matter of Astor, 62 A.D.3d 867, 868, 879 N.Y.S.2d 560, quoting Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843, 845, 873 N.Y.S.2d 239, 901 N.E.2d 732 [internal quotation marks omitted] ).

Upon our in camera inspection of the documents at issue on appeal, we find that the Supreme Court providently exercised its discretion in denying those branches of the plaintiff's motion which were to compel the defendants to produce the documents withheld based on attorney-client privilege ( seeCPLR 3101[b]; 4503[a]; Roswell Park Cancer Inst. Corp. v. Sodexo Am., LLC, 68 A.D.3d 1720, 1721–1722, 891 N.Y.S.2d 827;Robert V. Straus Prods. v. Pollard, 289 A.D.2d 130, 131, 734 N.Y.S.2d 170;Charter One Bank v. Midtown Rochester, 191 Misc.2d 154, 164–166, 738 N.Y.S.2d 179), as well as various statutes governing information gathered or provided by hospitals ( seePublic Health Law §§ 2805–m, 230[11]; Education Law § 6527[3]; Klingner v. Mashioff, 50 A.D.3d 746, 747, 855 N.Y.S.2d 628;Atkins v. Guest, 201 A.D.2d 411, 412, 607 N.Y.S.2d 655).

The defendants contend that four documents characterized in the privilege log and supplemental privilege log as attorney work product ( seeCPLR 3101[c] ) were, in the alternative, properly withheld as materials prepared in anticipation of litigation ( seeCPLR 3101[d] ). This contention, raised for the first time on appeal, is not properly before this Court ( see Howard Rosengarten, P.C. v. Hott, 49 A.D.3d 328, 328–329, 854 N.Y.S.2d 687). Moreover, the defendants failed to meet their burden of establishing that three of the four documents, namely those designated as numbers 88 and 89 in the privilege log and number 11 in the supplemental privilege log, constitute...