Opinion
No. 09–2277.
2010-04-20
Calvin MANN, Plaintiff, v. Frank D. PETRAMALE and Richard A. Petramale, Defendants.
Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Thomas A. Murphy, Esq., of counsel, Kingston, Attorneys for Plaintiff. Hiscock & Barclay, LLP, Kevin P. Glasheen, Esq., of counsel, Albany, Attorneys for Defendants.
Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Thomas A. Murphy, Esq., of counsel, Kingston, Attorneys for Plaintiff. Hiscock & Barclay, LLP, Kevin P. Glasheen, Esq., of counsel, Albany, Attorneys for Defendants.
HENRY F. ZWACK, J.
In this personal injury case, defendants moved for an order requiring plaintiff to provide medical authorizations to defendants to obtain certain medical records of plaintiff. Plaintiff opposes the motion.
Plaintiff rented property at 34 Deerhaven Lane in Saugerties from defendants and alleges in his complaint that on November 22, 2007 he fell down interior steps at the property due to a dangerous condition.
On the present motion, defendants note that plaintiff and his family resided at the property in question, a single-family home, since 1992. Plaintiff alleges that the defective condition consists of deteriorated carpeting, a lack of handrails, and inadequate lighting. While plaintiff normally worked as a janitor from 5:00 p.m. to 1:00 a.m., on November 22, 2007 he arrived home early, at approximately 7:00 p.m., because it was the night before Thanksgiving. Plaintiff denied consuming alcohol during the day or evening of November 22, 2007. Plaintiff acknowledged being in alcohol rehabilitation at Kingston Hospital as an inpatient for three weeks in August 2008.
Defendants have requested authorizations for plaintiff's medical records relating to his alcohol rehabilitation and plaintiff has denied this request. Defendants argue that these records are discoverable and relevant to liability and damages in the instant action. Defendants have set forth the affirmative defenses of comparative negligence, assumption of risk and plaintiffs couple conduct. Defendants argue that the records could reveal admissions by plaintiff relating to alcohol consumption at the time of the subject accident and that alcohol consumption could be considered regarding causation of the accident. Defendants note that plaintiff had resided at the residence for many years and had never had a problem with the stairs previously and also note plaintiff's abbreviated workday on the day of the accident, in addition to his inpatient alcohol treatment nine months after the accident.
In opposition, plaintiff argues that the records in question are not subject to discovery and that defendants' request for them constitutes a fishing expedition. Plaintiff argues that there is no proof that plaintiff was intoxicated at the time of the accident and argues that his medical records in conjunction with the subject accident would have noted intoxication if that was the case.
In reply, defendants contend that the absence of a reference to intoxication on plaintiff's medical records relating to the subject accident is not conclusive on this point and also that there is no proof regarding the lapse of time between the accident and plaintiff's medical treatment. Defendants argue that based upon the facts of this case, the records do not constitute a fishing expedition. Defendants attached records received from the State Retirement System that includes some of the records from plaintiff's alcohol treatment in 2008 and defendants note that they support a conclusion that plaintiff was not abstaining from alcohol during the time of the subject accident.
The Court concurs with defendants that the records in question must be disclosed. Given the nature of the accident, a fall down the stairs, the length of time plaintiff had been residing at the premises, the fact that plaintiff entered inpatient alcohol rehabilitation nine months after the accident, and the fact that the records defense counsel has obtained raise possible questions as to plaintiff's alcohol use during the time period of the accident, the Court finds that the facts of this case warrant disclosure of plaintiff's alcohol rehabilitation records. The Court does not find that defendants' request for these records constitutes a fishing expedition under all the circumstances present in this case and notes that medical records regarding substance abuse have been found discoverable in analogous situations (Steinberg v. Montefiore Medical Center, 23 AD3d 281 [1st Dep't 2005]; Spangler v. Benedictine Hosp., 286 A.D.2d 280 [1st Dep't 2001]; Doe v. James M. Inman Constr. Corp., 281 A.D.2d 387 [2nd Dep't 2001]; Moore v. Superior Ice Rink, Inc., 251 A.D.2d 305 [2nd Dep't 1998] ). Plaintiff shall forthwith provide a medical authorization to defendants' counsel relating to the care and treatment of plaintiff for substance abuse in August 2008 by Kingston Hospital, Dr. Douglas Astion, D.O. and Paul T. Wilson, R.P.A.
Noting the sensitive nature of these records, the Court will require defendants to execute a confidentiality agreement that provides that the records will remain in the possession and control of defense counsel; that the information contained in the records will only be used for purposes of the defense of this proceeding; that the records will be kept confidential and will be returned to plaintiff's counsel at the end of this proceeding.
Accordingly, it is
ORDERED, that defendants' motion is granted as set forth above.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendants. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.