Opinion
2014-01-22
Elizabeth MONTALTO, et al., respondents, v. David HECKLER, etc., et al., appellants.
Dopf, P.C., New York, N.Y. (Martin B. Adams of counsel), for appellant Natasia Laskina. Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen and Michelle C. Acosta of counsel), for appellants David Heckler and Middle Country Medical Care, P.C.
Dopf, P.C., New York, N.Y. (Martin B. Adams of counsel), for appellant Natasia Laskina. Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen and Michelle C. Acosta of counsel), for appellants David Heckler and Middle Country Medical Care, P.C.
Edelman, Krasin & Jaye, PLLC, Carle Place, N.Y. (Jarad Lewis Siegel of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Natasia Laskina appeals, and the defendants David Heckler and Middle Country Medical Care, P.C., separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Suffolk County (Martin, J.), dated August 29, 2012, as granted those branches of the plaintiffs' motion which were for a protective order pursuant to CPLR 3103 precluding the disclosure of certain psychological treatment records, financial records, and electronic communications of the plaintiff Elizabeth Montalto.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiffs' motion which was for a protective order pursuant to CPLR 3103 precluding the disclosure of certain psychological treatment records of the plaintiff Elizabeth Montalto, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
“In order to comply with ‘the liberal discovery provisions of the CPLR,’ a party who affirmatively places his or her medical condition into issue ‘must provide duly executed and acknowledged written authorizations for the release of pertinent medical records' ” (M.C. v. Sylvia Marsh Equities, Inc., 103 A.D.3d 676, 679, 959 N.Y.S.2d 280, quoting DeLouise v. S.K.I. Wholesale Beer Corp., 79 A.D.3d 1092, 1093, 913 N.Y.S.2d 774). In addition, “the defense is entitled to review records showing ‘the nature and severity of the plaintiff's prior medical conditions [which] may have an impact upon the amount of damages, if any, recoverable for a claim of loss of enjoyment of life’ ” (M.C. v. Sylvia Marsh Equities, Inc., 103 A.D.3d at 679, 959 N.Y.S.2d 280, quoting Amoroso v. City of New York, 66 A.D.3d 618, 618, 887 N.Y.S.2d 163). Here, the plaintiffs alleged that, as a result of the defendants' malpractice, the plaintiff Elizabeth Montalto (hereinafter the injured plaintiff) suffered, among other injuries, brain damage, an inability to perform activities of daily living without assistance, and a loss of enjoyment of life. Based upon these allegations, records of psychological treatment that the injured plaintiff may have received prior to or subsequent to the date of the alleged malpractice are material and necessary for an accurate assessment of her damages ( see Moreira v. M.K. Travel & Transp., Inc., 106 A.D.3d 965, 967, 966 N.Y.S.2d 150; M.C. v. Sylvia Marsh Equities, Inc., 103 A.D.3d at 679, 959 N.Y.S.2d 280; Rothstein v. Huh, 60 A.D.3d 839, 839–840, 875 N.Y.S.2d 250). Accordingly, the Supreme Court should have denied that branch of the plaintiffs' motion which was for a protective order pursuant to CPLR 3103 precluding the disclosure of the records of the injured plaintiff's psychological treatment.
However, the defendants failed to demonstrate how the injured plaintiff's financial records and electronic communications, including her email messages, were material and necessary to their defense of this action. Therefore, the Supreme Court properly granted that branch of the plaintiffs' motion which was for a protective order with respect to those records and communications ( seeCPLR 3101[a]; Gitlin v. Chirinkin, 71 A.D.3d 728, 729, 895 N.Y.S.2d 724). MASTRO, J.P., ROMAN, MILLER and HINDS–RADIX, JJ., concur.