Opinion
Appeal No. 15168 Index No. 153689/16Case No. 2020-04249
01-27-2022
Gregory Kennedy, Plaintiff-Respondent, v. Kevin Ware et al., Defendants-Appellants. Appeal No. 15168 No. 2020-04249
Armienti, DeBellis & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for appellants. Wingate, Russotti, Shapiro, Moses and Halperin, LLP, New York (David M. Schwarz of counsel), for respondent.
Armienti, DeBellis & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for appellants.
Wingate, Russotti, Shapiro, Moses and Halperin, LLP, New York (David M. Schwarz of counsel), for respondent.
Before: Kapnick, J.P., Gesmer, González, Kennedy, Shulman, JJ.
Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about March 12, 2020, which, to the extent appealed from as limited by the briefs, denied defendants' motion to vacate a status conference order insofar as defendants requested the disclosure of certain documents, unanimously modified, on the law and the facts, to grant the motion to the extent of requiring plaintiff to authorize production of his New York City Transit Authority (NYCTA) personnel file, including employment-related medical records, and the matter remanded for in camera review to determine whether the documents in the personnel file are material and relevant to plaintiff's claimed injuries, and otherwise affirmed, without costs.
Supreme Court providently exercised its discretion in determining that defendants are not entitled to disclosure of medical records involving plaintiff's 1991 treatment for an umbilical hernia, since defendants failed to show how that treatment was related to the neck, back, and right shoulder injuries plaintiff alleges he suffered in the motor vehicle accident underlying this action (see Forman v Henkin, 30 N.Y.3d 656, 665-666 [2018]; Jerez v 2141, LLC, 191 A.D.3d 407, 407 [1st Dept 2021]; Noble v Ackerman, 216 A.D.2d 140, 140 [1st Dept 1995]).
As for defendants' demand for disclosure of records in plaintiff's NYCTA personnel file, Supreme Court restricted disclosure to records related to a single medical evaluation performed approximately two to three months before the accident, and those related to plaintiff's 2017 conviction for driving under the influence and resulting driver's license suspensions. However, defendants provided a reasonable basis for broader discovery, in which plaintiff would be obliged to produce NYCTA personnel records concerning earlier accidents occurring during his employment and concerning medical evaluations after the accident underlying this action. Such documents could disclose prior similar injuries, or could disclose evidence regarding the extent or permanency of plaintiff's claimed injuries (see Almonte v Mancuso, 132 A.D.3d 529 [1st Dept 2015]; Walker v City of New York, 205 A.D.2d 755, 756 [2d Dept 1994]). Further, in a good faith letter, defendants limited their request to medical records concerning treatments for injuries the same as or similar to the ones alleged in this action. Thus, defendants' request was appropriately tailored and reasonably calculated to yield relevant information (see Almonte, 132 A.D.3d at 529).
In order to protect plaintiff's privacy interest in his personnel records, an in camera review is appropriate to determine which, if any, of the records in plaintiff's NYCTA personnel file are material and relevant to plaintiff's claimed injuries and to redact any information that is irrelevant or prejudicial (see Harris v Schmidt, 117 A.D.3d 1569, 1569-1570 [4th Dept 2014]; Meder v Miller, 173 A.D.2d 392, 393 [1st Dept 1991]).