Kriger v. Holland Furnace Co.

• Decision Date: 05 December 1960
• Citation: 208 N.Y.S.2d 285,12 A.D.2d 44
• Parties: Judith KRIGER and Jacob Kriger, Respondents, v. HOLLAND FURNACE COMPANY, Joseph Gomes, Bernard Aisenberg and Michele Aisenberg, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 285

208 N.Y.S.2d 285

12 A.D.2d 44

Judith KRIGER and Jacob Kriger, Respondents, v. HOLLAND FURNACE COMPANY, Joseph Gomes, Bernard Aisenberg and Michele Aisenberg, Appellants.

Supreme Court, Appellate Division, Second Department.

Dec. 5, 1960.

Thomas Grimes, Brooklyn (Stanley D. Hicks, New York City, and James Dempsey, Peekskill, of counsel), for Bernard Aisenberg and Michele Aisenberg, appellants.

John Nielsen, New York City (John P. Smith, New York City, of counsel), for Holland Furnace Company and Joseph Gomes, appellants.

Benjamin Heller, New York City (Julius Vogel and Leonard H. Bernstein, New York City, of counsel), for respondents.

Before NOLAN, P. J., and BELDOCK, UGHETTA, KLEINFELD and CHRIST, JJ.

NOLAN, Presiding Justice.

This is an action by plaintiff Judith Kriger to recover damages for personal injuries alleged to have been sustained in an automobile accident, and by her husband, plaintiff Jacob Kriger, to recover for the loss of his wife's services and for the medical expenses.

The action was commenced in 1955. Judith Kriger sought damages for her injuries in the amount of $75,000, and Jacob Kriger sought to recover $15,000. In 1957, a Statement of Readiness was filed and the action was noticed for trial.

Subsequently, and in July, 1959, plaintiffs moved to amend their complaint so as to increase Judith Kriger's demand for damages to $350,000 and Jacob Kriger's demand to $150,000 because of brain injuries which were alleged to have resulted from the accident and for which Judith was then receiving treatment at a hospital in Massachusetts. The motion was granted over the opposition of the defendants. Plaintiffs have been unwilling, however, to permit inspection by defendants of the records of the Massachusetts hospital, or to permit pretrial examinations of the doctors who treated Judith at that institution and have so far successfully resisted all efforts by defendants to obtain such inspection and examinations, insisting that they have the right to try their action without disclosing the information which defendants seek and that they (plaintiffs) are privileged so to proceed by virtue of the provisions of section 352 of the Civil Practice Act.

The appeal is by defendants from an order which denies their motion for an amended bill of particulars; a further physical examination of Judith Kriger; a direction that plaintiffs' attorney furnish copies of hospital records relative to Judith's treatment in the hospital in Massachusetts; an examination before trial of the doctors who treated her in the hospital; and a stay of trial of the action pending the completion of such examinations and investigations.

We are agreed that the order was properly made, except insofar as it denied a stay of trial. No valid reason appears why there should be any further bill of particulars or physical examination, nor may plaintiffs be compelled to disclose the entries in the records of the Massachusetts hospital, or the information with respect to Judith's physical or mental condition obtained by the doctors who treated her there.

Sections 352 and 354 of the Civil Practice Act, insofar as they are pertinent, provide that a physician, upon any examination as a witness in a judicial action or proceeding, shall not be permitted to disclose any information which he acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity, unless the statutory prohibition is waived by the patient, in open court, on the trial of the action or proceeding, or prior theto by stipulation of the attorneys for the respective parties. Therefore, unless the attorneys for the parties have engaged in pretrial activities which may be construed as a waiver by stipulation (cf. Clifford v. Denver & Rio Grande R. R. Co., 188 N.Y. 349, 80 N.E. 1094)--and it is not claimed here that they have--the statutes invest Judith with an absolute privilege, despite the fact that her mental and physical condition has been disclosed in the proceedings which antedated the order appealed from, to insist that the information which she gave to her doctors shall not be disclosed either through their testimony (Rubin v. Equitable Life Assur. Soc. of U. S., 269 App.Div. 677, 53 N.Y.S.2d 351) or by the production of the hospital records (Matter of Coddington's Will, 307 N.Y. 181, 195, 120 N.E.2d 777, 784), until the time comes, as it eventually must, when the nature and extent of her injuries are revealed on trial.

But the statutes, although they protect Judith in the assertion of her privilege, do not give her the right to force the defendants to trial or to require the court to proceed with the trial of her action as long as she is unwilling to permit pretrial inquiry with respect to the injuries for which she seeks to recover damages. One of the powers which have always been recognized as inherent in courts, which are protected in their existence, their powers and jurisdiction by constitutional provisions, has been their right to control the order of their business and to so conduct the same that the rights of all suitors before them may be safeguarded (Riglander v. Star Co., 98 App.Div. 101, 104, 90 N.Y.S. 772, 774, affirmed 181 N.Y. 531, 73 N.E. 1131; Plachte v. Bancroft, Inc., 3 A.D.2d 437 and cases cited, at page 438, 161 N.Y.S.2d 892, at page 893).

Pursuant to that power and pursuant to statutory authority (Judiciary Law, § 85), it is provided by special rule of this court applicable to the Supreme Court in all the counties in the Second Judicial Department, that no action to recover damages for personal injuries involving hospitalization shall be placed on any trial calendar until there has been delivered to defendant's attorney a written instrument directed to the hospital, authorizing it 'to furnish to defendant's attorney a copy in duplicate of the plaintiff's * * * entire hospital record' (see Rules App.Div. Div. [2d Dept.], Special Statement of Readiness Rule, subd. (3)(d), eff. Jan. 15, 1957, as amd.). This rule is designed to aid in the disposition of the tremendous mumber of personal injury negligence actions which have clogged the trial calendars of the court to such an extent as to impede seriously the administration of justice. In adopting it, this court was not...