Opinion
No. 97 SSM 14
09-10-2019
Benedicta BRITO, Respondent, v. Rafael GOMEZ et al., Appellants.
Lewis Brisbois Bisgaard & Smith LLP, New York City (Nicholas P. Hurzeler of counsel), for appellants. Pollack, Pollack, Isaac & De Cicco, LLP, New York City (Brian J. Isaac of counsel), for respondent.
Lewis Brisbois Bisgaard & Smith LLP, New York City (Nicholas P. Hurzeler of counsel), for appellants.
Pollack, Pollack, Isaac & De Cicco, LLP, New York City (Brian J. Isaac of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, the case remitted to Supreme Court for further proceedings in accordance with this memorandum, and the certified question answered in the negative.
Plaintiff affirmatively placed the condition of her knees into controversy through allegations that the underlying accident caused difficulties in walking and standing that affect her ambulatory capacity and resultant damages (see generally Arons v. Jutkowitz, 9 N.Y.3d 393, 409, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007] ; Dillenbeck v. Hess, 73 N.Y.2d 278, 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [1989] ). Under the particular circumstances of this case, plaintiff therefore waived the physician-patient privilege with respect to the prior treatment of her knees and the discovery sought by authorizations pertaining to the treatment of plaintiff's knees is "material and necessary" to defendants' defense of the action ( CPLR 3101[a] ). Accordingly, Supreme Court erred in denying defendants' motion to compel plaintiff to provide discovery related to the prior treatment of her knees.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11 ), order reversed, with costs, case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the memorandum herein and certified question answered in the negative.