Villano v. Conde Nast Publications, Inc.

• Decision Date: 26 November 1974
• Citation: 46 A.D.2d 118,361 N.Y.S.2d 351
• Parties: Michael VILLANO, Plaintiff-Respondent, v. The CONDE NAST PUBLICATIONS, INC., and the Hearst Corp., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 351

361 N.Y.S.2d 351

46 A.D.2d 118

Michael VILLANO, Plaintiff-Respondent, v. The CONDE NAST PUBLICATIONS, INC., and the Hearst Corp. Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Nov. 26, 1974.

Leo P. Larkin, Jr., New York City, of counsel (Francis J. Mellen, Jr., New York City, with him on the brief, Rogers & Wells, New York City), for defendants-appellants.

Norman C. Harlow, New York City, for plaintiff-respondent.

Before NUNEZ, J.P., and KUPFERMAN, MURPHY, LUPIANO and LANE, JJ.

LUPIANO, Justice.

In this action to recover damages for alleged invasion of privacy resulting from the publication of a photograph of plaintiff in the September, 1973 issues of VOGUE and TOWN AND COUNTRY, magazines published respectively by defendants, The Conde Nast Publications, Inc. and The Hearst Corp., plaintiff at his examination before trial put his physical condition in issue by claiming that the emotional distress occasioned by such publication aggravated a pre-existing condition of psoriasis for which he received medical treatment from a Dr. Goldfarb and a Dr. Parrish. Defendants' motion to compel disclosure as to the two physicians who are non-party witnesses was denied on the basis of an absence of special circumstances justifying such relief. Scrutiny of the record discloses that counsel for the litigants were in agreement as to the propriety of defendants' request for the medical information possessed by the non-party witnesses, but that they disagreed as to the necessity of an examination before trial which might entail taking the witnesses away from their professional duties.

Disclosure is warranted on this record pursuant to CPLR 3101(a)(4). Even under the prior Act (CPA § 288) where disclosure was viewed with less liberality, a trend toward freer utilization of disclosure was discernible (Ortner v. Bankers Life Ins. Soc., 17 A.D.2d 325, 235 N.Y.S.2d 59 (1st Dept. 1962); Courtland v. Brown, Harris, Stevens, Inc., 6 A.D.2d 789, 174 N.Y.S.2d 1021 (1st Dept., 1958)). Indeed, in Ortner, this Department 'has established a policy of permitting the examination before trial of a hostile witness where the witness has special or exclusive knowledge of the facts in issue (Southbridge Finishing Co. v. Golding, 2 A.D.2d 430, 435, 156 N.Y.S.2d 542, 546), the purpose being to enable the parties to unearth the facts before trial. (Marie Dorros, Inc. v. Dorros Bros., 274 App.Div. 11, 80 N.Y.S.2d 25.)' (Ortner v. Bankers Life Ins. Soc., Supra, 17 A.D.2d, at p. 326, 235 N.Y.S.2d, at p. 60). Subsequent to enactment of the CPLR, the Court of Appeals in Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430 (1968) clearly indicated that a liberal construction is called for in respect of disclosure under CPLR 3101. This Court presaged this view in United States Life Ins. Co. v. Arenstein, 24 A.D.2d 978, 265 N.Y.S.2d 431 (1st Dept. 1965), wherein a party's physical complaints and medical history, material to issues in litigation, justified examination of that party's physicians as being 'fully and easily within the special knowledge and competence of his doctors'. In that case we indicated the Likelihood that the physicians were hostile. Recently, in Glatzer v. Monarch Life Ins. Co., 40 A.D.2d 771, 337 N.Y.S.2d 343 (1st Dept., 1972), we held that adequate special circumstances existed to justify examination of the plaintiff's personal physician as a non-party witness on the basis that he supplied (and presumably possessed) information as to his patient's medical history claimed to be at variance with that of plaintiff's own assertion as to his physical condition at the time of application for the defendant's insurance policy. Patently, '(k)nowledge exclusively possessed by prospective witnesses, touching liability and damages, combined with their refusal to speak except by force of subpoena, establishes the special circumstances required for a disclosure order pursuant to paragraph (4) of subdivision (a) of CPLR 3101' (Sherwood v. Eli Lilly and Company, 36 A.D.2d 533, 318 N.Y.S.2d 636 (2nd Dept., 1971)). Parenthetically, it is noted that most recently the Fourth Department approved the liberal construction of CPLR 3101(a)(4) advocated by Professor David D. Siegel in his practice commentary (McKinney's Cons. Laws of N.Y., Book 7B CPLR 3101, C 3101:22) to the effect 'that disclosure against a nonparty witness should be just as broad in the state practice as it is in the federal. The only barrier is CPLR 3101(a)(4), and that is truly a nominal one. Even hostility of such a witness should not be a necessary showing. A mere showing by the lawyer that he needs such witness's pretrial deposition in order to prepare fully for the trial should suffice as a 'special circumstance" (Kenford Company, Inc. v. County of Erie, 41 A.D.2d 586, 340 N.Y.S.2d 300 (4th Dept., 1973)).

With respect to the physician-patient privilege, it has been aptly observed that '(a) party should not be permitted to assert a mental or physical condition in seeking damages or in seeking to absolve himself from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim and the nature and extent of the injury or condition. . . . In light of the strong policy in favor of full disclosure unless the information sought is immunized, the burden of showing the appropriate immunity should be on the party asserting it (Haire v. Long Is. R.R. Co., 53 Misc.2d 536, 279 N.Y.S.2d 88)' (Koump v. Smith, 25 N.Y.2d 287, 294 303 N.Y.S.2d 858, 864, 250 N.E.2d 857, 861 (1969); see Steinberg v. New York Life Ins. Co., 263 N.Y. 45, 188 N.E. 152 (1933)). As noted above, the parties herein do not dispute defendants' right to ascertain the truth of plaintiff's claim as to aggravation of a pre-existing physical condition.

The dissent adverts to two classes of cases in support of its position. Such support is misplaced and inapplicable to the instant situation.

Where an accounting is the ultimate object of an action, not present here, but involved in the cases cited in the dissent, it is well recognized that the Right to the accounting must first be established before discovery proceedings can be ordered. This a common sense application of law and judicial...