Gandy v. Larkins

• Decision Date: 24 September 1990
• Citation: 165 A.D.2d 862,560 N.Y.S.2d 326
• Parties: Ganell GANDY, Respondent, v. Ernestine LARKINS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 326

560 N.Y.S.2d 326

165 A.D.2d 862

Ganell GANDY, Respondent, v. Ernestine LARKINS, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 24, 1990.

Shapiro, Shiff, Beilly, Rosenberg & Fox, New York City (Gerald Richman, of counsel), for appellant.

Gardiner & Nolan, Brooklyn (William A. Gardiner, of counsel), for respondent.

Before KUNZEMAN, J.P., and EIBER, SULLIVAN and MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Hurowitz, J.), dated November 4, 1988, which granted the plaintiff's motion to direct the defendant to supply authorizations with respect to her admission to Brookdale Hospital on August 8, 1985, and her employment medical records from 1980 to 1985.

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

The plaintiff allegedly sustained serious and permanent injuries on August 8, 1985, when she, a pedestrian, was struck by a vehicle owned and operated by the defendant.

Discovery with respect to a party's mental or physical condition may be obtained where that party's mental or physical condition has been placed in controversy (CPLR 3121[a]. "Such a situation may arise where a defendant affirmatively asserts the condition either by way of counterclaim or to excuse the conduct complained of by the plaintiff (Koump v. Smith, 25 NY2d 287, 294 [303 N.Y.S.2d 858, 250 N.E.2d 857]" (Cannistra v. County of Putnam, 139 A.D.2d 479, 480, 526 N.Y.S.2d 841). Even where there has been a showing that a party's physical condition is in controversy, discovery may still be precluded where the information requested is privileged and there is no evidence of a waiver of privilege (see, Dillenbeck v. Hess, 73 N.Y.2d 278, 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126).

Where, as here, neither the pleadings nor the defendant's deposition reveal that the defendant suffered from a physical or mental disability at the time of the accident, her condition has not been placed in controversy (see, D'Alessio v. Nabisco, Inc., 123 A.D.2d 816, 817, 507 N.Y.S.2d 431). Nor has the defendant's physical condition been placed in controversy by the plaintiff's unsupported allegations that she was intoxicated at the time of the accident (see, Gaglia v. Wells, 112 A.D.2d 138, 490 N.Y.S.2d 829). Moreover, the record contains no indication that the defendant has waived the physician-patient privilege which attaches to medical records by asserting her medical condition, either...