Klingner v. Mashioff

• Decision Date: 08 April 2008
• Docket Number: 2007-02201.,2007-05950.
• Citation: 50 A.D.3d 746,2008 NY Slip Op 03176,855 N.Y.S.2d 628
• Parties: MYRNA KLINGNER, Appellant, v. ROBERT MASHIOFF et al., Defendants, and ELLIOT PAUL et al., Respondents.
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 746

855 N.Y.S.2d 628

2008 NY Slip Op 03176

MYRNA KLINGNER, Appellant, v. ROBERT MASHIOFF et al., Defendants, and ELLIOT PAUL et al., Respondents.

2007-02201.

2007-05950.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided April 8, 2008.

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the plaintiff appeals, as limited by her notices of appeal and brief, (1) from so much of an order of the Supreme Court, Queens County (Grays, J.), dated January 22, 2007, as granted the cross motion of the defendants Elliot Paul, Rafael Barreira-Sweeney, Arthur David M. Smith, and Long Island Jewish Medical Center for a protective order to the extent of directing them to submit to the court certain documents for in camera inspection, and (2) from so much of an order of the same court dated May 21, 2007, as, upon in camera inspection of those documents, granted the cross motion for a protective order.

Ordered that the appeal from the order dated January 22 2007 is dismissed, as no appeal lies from an order that does not decide a motion made on notice (see CPLR 5701 [a] [2]), and on the further ground that that order was superseded by the order dated May 21, 2007; and it is further,

Ordered that the order dated May 21, 2007 is modified, on the law, by deleting the provision thereof granting the branch of the cross motion which was for a protective order with respect to the first document listed on the privilege log of the defendant Long Island Jewish Medical Center as to the statements therein made by several of the individual defendants regarding the subject matter of this action and substituting therefor a provision denying that branch of the cross motion; as so modified, the order dated May 21, 2007 is affirmed insofar as appealed from, without costs or disbursements, and the time for the defendant Long Island Jewish Medical Center to serve on the plaintiff the first document listed on its privilege log with the confidential information redacted shall be within 30 days after service upon it of a copy of this decision and order.

The Supreme Court properly directed the defendant Long Island Jewish Medical Center (hereinafter the Hospital) to submit to the court the documents set forth in the Hospital's privilege log for in camera inspection in order to assist the court in determining whether the documents in fact are privileged under Education Law § 6527 (3) and Public Health Law § 2805-m (see Ross v Northern Westchester Hosp. Assn., 43 AD3d 1135, 1136 [2007]; Spradley v Pergament Home Ctrs., 261 AD2d 391, 392 [1999]).

After...