Opinion
2015-05-06
Aaliyah S. WASHINGTON, et al., respondents, v. ALPHA–K FAMILY MEDICAL PRACTICE, P.C., et al., appellants, et al., defendants.
Dillon, J.P., Leventhal, Austin and LaSalle, JJ., concur.
Dwyer & Taglia, New York, N.Y. (Peter R. Taglia of counsel), for appellants. The Fitzgerald Law Firm, P.C., Yonkers, N.Y. (John M. Daly, Eugene S.R. Pagano, Mitchell L. Gittin, and Ann Chase of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, the defendants Alpha–K Family Medical Practice, P.C. and Emmanuel O. Fashakin appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated July 29, 2013, as denied that branch of their motion which was to compel the plaintiffs to disclose certain medical records.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was to compel the production of a nonparty sibling's medical records. Even when the party seeking disclosure has demonstrated that such disclosure is material and necessary in the prosecution or defense of an action ( seeCPLR 3101[a][1] ), discovery may still be precluded where, as here, the requested information is privileged and thus exempted from disclosure pursuant to CPLR 3101(b) ( see Dillenbeck v. Hess, 73 N.Y.2d 278, 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126; Farkas v. Orange Regional Med. Ctr., 97 A.D.3d 720, 721, 948 N.Y.S.2d 651; Paliouras v. Donohue, 89 A.D.3d 1070, 1071, 933 N.Y.S.2d 618). “Once the privilege is validly asserted, it must be recognized and the sought-after information may not be disclosed unless it is demonstrated that the privilege has been waived” (Dillenbeck v. Hess, 73 N.Y.2d at 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126).
Contrary to the appellants' contention, under the circumstances of this case, it cannot be said that the mother waived the nonparty sibling's physician-patient privilege ( see Roman v. Turner Colours, 255 A.D.2d 571, 681 N.Y.S.2d 69; cf. Knowles v. Saint Joseph's Med. Ctr., 114 A.D.3d 730, 731, 980 N.Y.S.2d 530; Ritter v. Good Samaritan Hosp., 11 A.D.3d 667, 783 N.Y.S.2d 87; Scharlack v. Richmond Mem. Hosp., 102 A.D.2d 886, 477 N.Y.S.2d 184). The testimony adduced at the deposition of the infant plaintiffs' mother concerned mere facts and incidents of the nonparty sibling's medical history, not privileged communications ( see Williams v. Roosevelt Hosp., 66 N.Y.2d 391, 497 N.Y.S.2d 348, 488 N.E.2d 94). Moreover, the mother explicitly stated that she was exercising the physician-patient privilege with respect to the records sought by the appellants, and subsequently objected to the demand for authorizations.