Prink v. Rockefeller Center, Inc.

• Decision Date: 15 November 1979
• Citation: 422 N.Y.S.2d 911,398 N.E.2d 517,48 N.Y.2d 309
• Parties: , 398 N.E.2d 517 Theresa C. PRINK, as Administratrix of the Estate of Robert V. Prink, Deceased, Appellant, v. ROCKEFELLER CENTER, INC., et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 911

422 N.Y.S.2d 911

48 N.Y.2d 309, 398 N.E.2d 517

Theresa C. PRINK, as Administratrix of the Estate of Robert V. Prink, Deceased, Appellant, v. ROCKEFELLER CENTER, INC., et al., Respondents.

Court of Appeals of New York.

Nov. 15, 1979.

Arthur B. Sheehan, New York City, for appellant.

Richard Bakalor, New York City, for Rockefeller Center, Inc., respondent.

Richard T. Andrias and Andrew P. Davis, New York City, for Van Summern & Weigold Planning Associates, Inc., respondent.

OPINION OF THE COURT

MEYER, Judge.

The question presented by this appeal is whether evidentiary privileges prevent disclosure in a wrongful death action concerning the mental condition of the decedent whose unwitnessed death occurred under circumstances consistent with either negligence of the defendant or suicide. We hold that since decedent himself could not have prevented disclosure, his personal representative may not do so in an action brought under EPTL 5-4.1.

Plaintiff is the administratrix of the estate of her husband, Robert Prink, who was an associate of a law firm whose offices were at 30 Rockefeller Plaza in New York City. On March 1, 1976, he was found dead on the sixth floor setback of the building. The window of the 36th floor office Mr. Prink had occupied was open. There were no eyewitnesses, but the deputy chief medical examiner noted on Mr. Prink's death certificate that Dr. Thomas Doyle, Mr. Prink's psychiatrist, had reported to him that Mr. Prink had been acutely tense and depressed.

Thereafter plaintiff commenced the present action against defendants, the owners and architects respectively of 30 Rockefeller Center, claiming that negligence in the design and installation of the window alcove desk at which decedent worked and in the maintenance of the window required that he kneel on the desk in order to open the window which was jammed, and that he lost his balance and fell when he attempted to do so. During the examination of plaintiff before trial she admitted that her husband had told her sometime before his death that he was seeing Dr. Doyle, a psychiatrist, but refused on the basis of the spousal privilege to disclose what her husband had said about why he was seeing Dr. Doyle. She also admitted that after her husband's death she had spoken with Dr. Doyle, but refused to disclose the content of the conversation, claiming privilege. ¹ On defendants' motion for an order compelling plaintiff to testify concerning the content of her conversations with her husband and Dr. Doyle, Special Term ordered the questions answered. The Appellate Division affirmed, but certified to us the question "Was the order of the Supreme Court, as affirmed by this Court, properly made?" We answer the certified question in the affirmative and, therefore, affirm the Appellate Division's order.

The initial inquiry is whether privilege ever attached. The conversation between Mr. and Mrs. Prink occurred during marriage and was of a nature that it would not have been made but for the confidence induced by the marital relationship. It would, therefore, be within the protection of CPLR 4502 (subd. (b)). Less certain is whether Dr. Doyle's conversation with Mrs. Prink after her husband's death is privileged for Mrs. Prink did not consult Dr. Doyle as a patient. Mr. Prink did, however, and Dr. Doyle's information concerning him was, therefore, "acquired in attending a patient in a professional capacity" within the meaning of CPLR 4504 (subd. (a)) and for purposes of the present inquiry at least may be presumed to have been "necessary to enable him to act in that capacity" as required by that provision.

Neither the spousal (see Southwick v. Southwick, 49 N.Y. 510, 518; Richardson, Evidence (10th ed. Prince), § 455) nor the physician-patient privilege (CPLR 4504, subd. (c); Davis v. Supreme Lodge, Knights of Honor, 165 N.Y. 159, 58 N.E. 891; 8 Wigmore, Evidence (McNaughton rev.), § 2341) is terminated by death alone. Both privileges, therefore, apply unless waived in some manner. To be borne in mind in deciding whether there has been a waiver is that the conjugal privilege belongs not to the witness but to the spouse against whom the testimony is offered (People v. McCormack, 278 App.Div. 191, 194, 104 N.Y.S.2d 139, 143, affd. 303 N.Y. 782, 103 N.E.2d 895; see People v. Melski, 10 N.Y.2d 78, 80, n. 1, 217 N.Y.S.2d 65, 67, 176 N.E.2d 81, 83; Richardson, Op. cit., § 453) and that the physician-patient privilege belongs to the patient (CPLR 4504, subd. (a); Richardson, Evidence, § 434). From the latter fact it follows that Dr. Doyle's voluntary disclosures to the chief medical examiner and to Mrs. Prink after her husband's death, proper though they undoubtedly were as a matter of professional ethics (see Lanza v. New York State Joint Legislative Comm., 3 N.Y.2d 92, 97, 164 N.Y.S.2d 9, 12, 143 N.E.2d 772, 774; 45 N.Y.Jur. 371, Physicians & Surgeons, § 119), cannot constitute a waiver making an otherwise privileged statement admissible (see Matter of City Council of City of N. Y. v. Goldwater, 284 N.Y. 296, 31 N.E.2d 31; Davis v. Supreme Lodge, Knights of Honor, 165 N.Y. 159, 58 N.E. 891, Supra; People v. Harris, 39 Misc.2d 193, 240 N.Y.S.2d 503; Richardson, Op. cit., §§ 440, 452; 8 Wigmore, Op. cit., § 2381). To hold that a recipient of confidential information by his sole fiat may destroy the privilege would be directly contrary to the salutary purpose for which the privilege was adopted. ²

There is, however, another basis upon which we hold not only the doctor-patient but also the spousal privilege waived. The instant action is brought pursuant to EPTL 5-4.1, which authorizes an action for wrongful death only "for a wrongful act, neglect or default which Caused the decedent's death against a person Who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued" (emphasis supplied). Thus to succeed in this action, which is wholly statutory in nature, plaintiff must establish that it could have been maintained by decedent had he survived (Emery v. Rochester Tel. Corp., 271 N.Y. 306, 3 N.E.2d 434 (not maintainable where there was no direct interference with decedent's person); Barnhart v. American Concrete Steel Co., 227 N.Y. 531, 125 N.E. 675 (not maintainable when barred by release in contract of employment); Kelliher v. New York City & Hudson Riv. R. R. Co., 212 N.Y. 207, 105 N.E. 824 (not maintainable where Statute of Limitations had run during decedent's lifetime)) and that defendants' wrongful act caused his death. In final analysis, therefore, the issue is whether had Mr. Prink survived and brought the action he could successfully have resisted defendants' demand, in their effort to establish that his injuries resulted from attempted suicide rather than defendants' negligence, for disclosure of his conversations with Dr. Doyle and with his wife. ³

Clearly his privilege against self incrimination would not have helped him, for that privilege does not permit a plaintiff to claim affirmative relief and at the same time refuse to disclose information bearing upon his right to maintain his action (Levine v. Bornstein, 13 Misc.2d 161, 174 N.Y.S.2d 574, affd. 7 A.D.2d 995, 183 N.Y.S.2d 868, affd. 6 N.Y.2d 892, 190 N.Y.S.2d 702, 160 N.E.2d 921). For essentially the same reason (the unfairness of mulcting a defendant in damages without affording him an opportunity to prove his lack of culpability (cf. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297)), Mr. Prink as plaintiff could assert neither the physician-patient privilege (Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 864, 250 N.E.2d 857, 861; see People v. Al-Kanani, 33 N.Y.2d 260, 351 N.Y.S.2d 969, 307 N.E.2d 43, cert. den. 417 U.S. 916) nor, we now hold, the conjugal privilege to foreclose inquiry concerning whether his injury was the result of an attempt at suicide.

In Koump plaintiff demanded authorization pursuant to CPLR 3121 to obtain defendant's hospital record in an effort to show that defendant was intoxicated at the time his car crossed a center divider striking plaintiff's car and injuring plaintiff. We upheld defendant's claim of privilege in that case because defendant had done no more than deny plaintiff's allegation that defendant was intoxicated and plaintiff's only evidence of intoxication was an attorney's affidavit reciting that the police report of the accident contained a hearsay statement that defendant appeared intoxicated. Nevertheless, we recognized (25 N.Y.2d, at p. 294, 303 N.Y.S.2d, at p. 864, 250 N.E.2d, at p. 861): "that by bringing or defending a personal injury action in which mental or physical condition is affirmatively put in issue, a party Waives the privilege" (emphasis in original).

Whatever the ultimate determination of the triers of fact may be in the present case and notwithstanding the presumption against suicide which they will have to consider in reaching their determination, we conclude that it is a matter of common knowledge which we can judicially notice (Richardson, Op. cit., § 44) that many apparently accidental deaths are in fact suicides and that a wrongful death complaint predicated upon an alleged accidental fall from a 36th story window is sufficiently equivocal in that respect to put in issue, by plaintiff's affirmative act in bringing the action, decedent's mental condition (see Matter of Beeler v. Hildan Crown Container Corp., 26 A.D.2d 163, 271 N.Y.S.2d 373 (mental condition in issue where claimant's decedent died in a fall from a 12th floor office); see, also, Farber, Theory of Suicide, p. 7; Gibbs, Suicide, Introduction, p. 13; Porterfield Problem of Suicide (in Gibbs, Suicide), pp. 33-34). To hold otherwise is to ignore the realities of the factual situation and to come perilously close to a taking of defendants' property without due process of law (cf. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, Supra ). An additional...