Opinion
No. 2012–1582.
06-10-2016
Lina CIANCIULLO–BIRCH and Thomas P. Birch, Plaintiffs, v. CHAMPLAIN CENTRE NORTH LLC, The Pyramid Management Group, LLC, Dick's Sporting Goods, Inc. and UGL Services Unicco Operations Co., Defendants. Champlain Centre North, LLC, Third–Party Plaintiff, v. Robert Tripp d/b/a R. Tripp Trucking & Excavating, Third–Party Defendant.
LaFave, Wein & Frament, PLLC, (Paul H. Wein of counsel), Guilderland, for plaintiffs. Corrigan, McCoy & Bush, PLLC, (Scott W. Bush of counsel), Rensselaer, for defendant UGL Services UNICCO Operations Co. Goldberg Segalla, LLP, (Sandra J. Sabourin of counsel), Syracuse, for defendants Champlain Centre North, LLC, Pyramid Management Group and Dick's Sporting Goods, Inc. and third-party plaintiff, Champlain Centre North, LLC. Hancock Estabrook, LLP, (Maureen E. Maney of counsel), Syracuse, for third-party defendant Robert Tripp d/b/a R. Tripp Trucking & Excavating.
LaFave, Wein & Frament, PLLC, (Paul H. Wein of counsel), Guilderland, for plaintiffs.
Corrigan, McCoy & Bush, PLLC, (Scott W. Bush of counsel), Rensselaer, for defendant UGL Services UNICCO Operations Co.
Goldberg Segalla, LLP, (Sandra J. Sabourin of counsel), Syracuse, for defendants Champlain Centre North, LLC, Pyramid Management Group and Dick's Sporting Goods, Inc. and third-party plaintiff, Champlain Centre North, LLC.
Hancock Estabrook, LLP, (Maureen E. Maney of counsel), Syracuse, for third-party defendant Robert Tripp d/b/a R. Tripp Trucking & Excavating.
ROBERT J. MULLER, J.
This action arises out of an incident that occurred on March 27, 2011 at the Champlain Centre North Mall in Plattsburgh, New York [hereinafter the “Mall”]. The Plaintiff, Lina Cianciullo–Birch, went to Dick's Sporting Goods to purchase a soccer ball and, after exiting the store with the intention of returning to her nearby parked car, she crossed a sidewalk and stepped off of the curb, adjacent to the Mall's entranceway, and onto the road. In the process she claims to have suffered personal injuries and brought this action for her damages as well as a spousal derivative claim. The dispute at present centers upon motions to compel authorizations for the plaintiff's mental health records and vacating the note of issue—filed by all defendants and the third party defendant, following plaintiff's refusal to provide authorizations for access to her prior psychological records. The plaintiff cross moves for a protective order to prevent such access. The bill of particulars, since amended, alleged inter alia an “exacerbation of pre-existing anxiety/depression” and damages for Lina Birch that were “both physical and psychological [including] a loss of enjoyment of life [and] lost consortium, lost society, lost recreational and social activities.” The amended bill of particulars omits the former allegation but retains all of the latter. All bills of particulars clearly allege a loss of enjoyment of life and none of the bills of particulars address whether any of the injuries are considered permanent.
Time, however, remains for permanency to be addressed in a supplemental bill (see CPLR 3043(b) ; see also Baisley v. Canton–Potsdam Hospital, 50 Misc.3d 1216(A) [Sup Ct, St. Lawrence County 2015] ) with the note of issue being vacated herein.
Initially this Court observes that a claim for loss of enjoyment of life is not a separate element of damages, but rather “a factor to be considered by the jury in assessing damages for conscious pain and suffering” (Nussbaum v. Gibstein, 73 N.Y.2d 912, 914 [1989] ), by weighing “the frustration and anguish caused by the inability to participate in activities that once brought pleasure.” (McDougald v. Garber, 73 N.Y.2d 246, 257 [1989].) The question thus framed is whether plaintiff has waived the physician patient privilege concerning her entire medical history—but particularly records pertaining to her mental health—by having alleged a loss of enjoyment of life.
It has been long settled that a party must provide proper authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR (see CPLR 3121[a] ), when that party has waived the physician-patient privilege by affirmatively putting their physical or mental condition in issue (see Arons v. Jutkowitz, 9 NY3d 393 [2007] ; Dillenbeck v. Hess, 73 N.Y.2d 278 [1989] ; Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452 ; Prink v. Rockefeller Ctr., 48 N.Y.2d 309 [1979] ; Koump v. Smith, 25 N.Y.2d 287 [1969] ). The plethora of cases where disclosure was authorized have either focused upon the obvious waiver (see CPLR 4504 ), by placing one's physical or mental condition in issue or, more subtly, whether the records sought are discoverable as “material and necessary in the prosecution or defense of an action” (CPLR 3101[a] ; see, e.g. Daniele v. Long Is. Jewish–Hillside Med. Center, 74 A.D.2d 814 [2d Dept 1980] ; Brooks v. Hausauer, 51 A.D.2d 660 [4th Dept 1976] ; Mancinelli v. Texas E. Transmission Corp., 34 A.D.2d 535 [1st Dept 1970] ).
In her deposition plaintiff testified that she suffered from “depression [which] had gotten worse since the incident ... [although also admitting] in June of 2009 [of probably] telling [her] doctor [she had] no joy in anything....” The plaintiff has also previously undergone electroshock and, as a child, had care with an adolescent psychologist. Furthermore, in her testimony, plaintiff describes care for her mental health as continuing after the incident.
The Appellate courts have not at all been uniform in their dissection of this issue. In the First Department's 3–2 decision of Gumbs v. Flushing Town Center III, L.P. (114 AD3d 573, 577 [1st Dept 2014] ) it was observed only in dissent by Justices Freedman and Gische that “[p]laintiff's medical records [could] shed light on whether he suffered from other conditions, having nothing to do with this accident, which may have impacted upon his ability to enjoy life and/or life expectancy.”
In Vanalst v. City of New York (276 A.D.2d 789 [2d Dept 2000] ), however, the Appellate Division, Second Department ruled that records of prior treatment or injury to a body part that was not at issue in the lawsuit were discoverable because the plaintiff asserted a claim for loss of enjoyment of life. Since then, the Second Department has continued to follow its holding in Vanalst. (See e.g. Graziano v. Cagan, 105 AD3d 701 [2d Dept 2013] ; Cristiano v. York Hunter Servs., Inc., 99 AD3d 751 [2d Dept 2012] ; Abdalla v. Mazl Taxi, Inc., 66 AD3d 803 [2d Dept 2009], appeal after remand 75 AD3d 517 [2010] ; Amoroso v. City of New York, 66 AD3d 618 [2d Dept 2009] ; Orlando v. Richmond Precast, Inc., 53 AD3d 534 [2d Dept 2008] ; Weber v. Ryder TRS, Inc., 49 AD3d 865 [2d Dept 2008] ; Diamond v. Ross Orthopedic Group, P.C., 41 AD3d 768 [2d Dept 2007] ; but cf. Quinones v. 9 E. 69th St., LLC, 132 AD3d 750 [2d Dept 2015] [plaintiff not expressly seeking damages for loss of enjoyment of life and therefore did not place his mental condition in issue] ).
The Appellate Division, Third Department, has also addressed this issue in Coddington v. Lisk, (249 A.D.2d 817, 818 [3d Dept 1998] ), where the plaintiff sought damages for, inter alia, an alleged “loss of enjoyment of life” resulting from the incident, reasoning that such “records may be useful in preparation for trial and may lead to relevant evidence bearing on plaintiff's claim for damages” ' (citations omitted).
In the Fourth Department, however, the Appellate Division in Geraci v. National Fuel Gas Distrib. Corp. (255 A.D.2d 945, 946 [4th Dept 1998] ), concluded the plaintiff's entire medical history was at issue by having alleged “injury, pain, emotional upset, confinement to bed and house, and loss of enjoyment of life”. Afterwards, the Fourth Department went a different direction finding that “the allegations in the bill of particulars that plaintiff sustained, inter alia, mild cachexia and anorexia, loss of enjoyment of life, disability, disfigurement, fear of death, and extensive pain and suffering do not constitute such broad allegations of injury' that they place plaintiff's entire medical history in controversy” (see Tabone v. Lee, 59 AD3d 1021, 1022 [4th Dept 2009] [quoting Geraci, supra 255 AD at 946] ). More recently the Fourth Department seemingly changed course again holding in favor of disclosure where “[a]lthough plaintiff is no longer asserting a separate claim for emotional distress as a result of the accident, many of her broad allegations of injury, including her alleged limited ability to perform normal daily functions and social activities, as well as her alleged inability and limited ability to engage in life's enjoyments and loss of employment and career,' could have resulted from physical injuries sustained in the accident, her preexisting mental condition or some combination thereof” (Boyea v. Benz, 96 AD3d 1558, 1560 [4th Dept 2012] [citations omitted]; see also Schlau v. City of Buffalo, 125 AD3d 1546 [4th Dept 2015] ). This pattern of requiring disclosure was closely followed, citing Boyea, supra, in Josephe v. Dermatology Associates of Rochester, P.C., (28 NYS 3d 855, 857 [Sup Ct, Monroe County 2016] ), wherein the trial court held plaintiff's mental health records were nevertheless discoverable, “even where plaintiff has dropped her claim for emotional distress.”
What must be recognized by the foregoing is that this level of disclosure is more consistently favored than not, and this Court therefore finds the mental health records sought are “material and necessary” and likely to “assist preparation for trial by sharpening the issues. ....“ (Coddington v. Lisk, supra 249 A.D.2d at 818 [citations omitted]; see also Allegretti—Freeman v. Baltis, 205 A.D.2d 859, 860 [3d Dept 1994], quoting Allen v. Crowell—Collier Publ. Co., 21 N.Y.2d 403, 406 [1968] ).
Finally, the principle of full disclosure does not give a party the right to uncontrolled and unfettered disclosure (see CPLR 3101[a] ; see also Romance v. Zavala, 98 AD3d 726 [2d Dept 2012] ; D'Adamo v. Saint Dominic's Home, 87 AD3d 966, 969–970 [2d Dept 2011] ; JFK Family Ltd. Partnership v. Millbrae Natural Gas Dev. Fund 2005, L.P., 83 AD3d 899, 900 [2d Dept 2011] ). Under the circumstances of this case, authorizations should be reasonably limited to the records of treatment that occurred during a limited—rather than limitless—period prior to the date of this accident, March 27, 2011, and up to the present time. The authorizations shall be for a period no earlier than September 11, 2001, which is a date testified to by the plaintiff as a time of onset of her depression (see Farrell v. E.W. Howell Co., LLC, 103 AD3d 772 [2d Dept 2013] ; Abdur– Rahman v. Pollari, 107 AD3d 452, 454 [1st Dept 2013] ; Romance v. Zavala, 98 AD3d 726, 727 [2d Dept 2012] ; DeStrange v. Lind, 277 A.D.2d 344 [2d Dept 2000] ; McLeod v. Metropolitan Transp. Auth., 47 Misc.3d 1219(A) [Sup Ct, N.Y. County 2015] ).
The within constitutes the Decision and Order of this Court.
Therefore, having considered the Affirmation of Maureen E. Maney, Esq. dated February 17, 2015, with Exhibits “1” through “30” attached thereto, Affidavit of Sandra J. Sabourin, Esq., sworn to February 17, 2015 with Exhibits “A” through “PP attached thereto, the opposing Affirmation of Paul H. Wein, Esq., dated March 12, 2015 and also in support of the cross motion, the Reply Affirmation of Maureen E. Maney, Esq. dated March 19, 2015, the Reply Affidavit of Sandra J. Sabourin, Esq. sworn to March 17, 2015, and the Amended Verified Bills of Particulars dated October 13, 2015 it is hereby
ORDERED plaintiffs' cross motion for a protective order is denied; and it is further
ORDERED defendants' and third party defendant's motion to compel mental health record authorizations is granted and plaintiff shall provide proper authorizations for all mental health records dating from September 11, 2001 to the present; and it is further
ORDERED that within 90 days after the mental health record authorizations are provided, plaintiffs shall appear for a further deposition, and it is further
ORDERED that the note of issue is vacated, and it is further
ORDERED that any further relief, as sought, which is not specifically mentioned herein has, nevertheless, been expressly considered and is denied.
The original of this Decision and Order has been filed by the Court together with the Notices of Motion dated February 17, 2015 and the Notice of Cross Motion dated March 12, 2015 and the submissions enumerated above. Counsel for Champlain Centre North, LLC is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all parties in accordance with CPLR § 5513.