ORDERED that this motion by defendant Ford Credit Titling Trust for an order pursuant to CPLR 3124 compelling plaintiff Brett H. Teger to provide defendants with new HIPAA compliant authorizations under CPLR 3122; or pursuant to CPLR 3126 precluding plaintiff from presenting any evidence at trial with respect to any issues concerning his physical and/or mental health condition as a result of the accident; or pursuant to CPLR 3126 dismissing plaintiff's amended complaint with prejudice for failure to comply with defendant's discovery requests is determined herein.

Plaintiff Brett H. Teger seeks to recover damages for injuries that he allegedly sustained as a passenger in a vehicle that was involved in an accident on April 16, 1998 in Florida. Defendant Richard V. Healy was the operator and defendant Ford Credit Titling Trust was the lessor of the subject vehicle. The note of issue in this action was filed on May 14, 2003. The Court computer records indicate that the trial of this action is currently scheduled for April 2, 2004.

Defendant Ford Credit Titling Trust now moves to compel plaintiff Brett H. Teger to provide defendants with new HIPAA compliant authorizations under CPLR 3122 to obtain plaintiff's medical records for use at trial or to preclude plaintiff from presenting any evidence at trial with respect to any issues concerning his physical and/or mental health condition as a result of the accident or for dismissal of plaintiff's amended complaint with prejudice for failure to comply with defendant's discovery requests. Defendant Ford Credit Titling Trust asserts that one of its main defenses has been that plaintiff's alleged health conditions pre-existed the subject accident and that since the amendment to CPLR 3122 in September 2003, defendant has been unable to obtain medical records from newly discovered health care providers who treated plaintiff prior to the accident because plaintiff has not provided authorizations that comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). In support of its motion, defendant submits, inter alia, plaintiff's complaint; the answer of defendant Ford Credit Titling Trust; letters dated September 4, 2003, September 23, 2003, and October 22, 2003 from defendant's counsel to plaintiff's counsel requesting new HIPAA compliant authorizations for 11 specified providers; a letter dated October [*2]23, 2003 from plaintiff's counsel to defendant's counsel objecting to providing new authorizations on the grounds that authorizations have already been provided; and defendant's Notice For Discovery dated December 19, 2003 for HIPAA compliant authorizations for all of plaintiff's health care providers.

In opposition, plaintiff Brett H. Teger contends that discovery is stayed by an outstanding summary judgment motion; that defendant is precluded from obtaining additional discovery having signed a Compliance Conference Order and the note of issue having been filed; that all of the requested numerous authorizations have already been provided, some for as many as five prior occasions; that defendant's demands are overbroad and unduly burdensome requiring plaintiff to provide 174 authorizations; and that even if the authorizations provided did not comply with HIPAA, they are nevertheless sufficient by having complied with CPLR 3122. In support of his opposition, plaintiff submits, inter alia, a list of authorizations provided.

Initially, the Court notes that the prior motion, which was for summary judgment, was decided on January 22, 2004 and that the stay of disclosure pursuant to CPLR 3214 is no longer in effect. The sanctions for violations or noncompliance of the HIPAA, 45 CFR § 164.500 et seq., took effect on April 14, 2003 and the amended CPLR 3122 (a) providing that "[a] medical provider served with a subpoena duces tecum requesting the production of a patient's medical records pursuant to this rule need not respond or object to the subpoena if the subpoena is not accompanied by a written authorization by the patient" went into effect on or after September 1, 2003. As a result, medical providers have recently begun requiring that authorizations pursuant to CPLR 3122 (a) satisfy the requirements of HIPAA before they will produce a patient's medical records. Defendant Ford Credit Titling Trust has thus provided evidence of unusual or unanticipated circumstances subsequent to the filing of the note of issue which would justify their request for new authorizations which comply with HIPAA requirements so as to obtain plaintiff's records for the upcoming trial (see, 22 NYCRR §202.21[d]). Defendant has also demonstrated that it will be prejudiced without new authorizations which comply with HIPAA requirements for the 11 specified providers in its letters dated September 4, 2003, September 23, 2003, and October 22, 2003. However, at this juncture defendant has not demonstrated a need for authorizations for all of plaintiff's medical providers nor for the imposition of sanctions pursuant to CPLR 3126.

Therefore, plaintiff is to provide authorizations solely for said 11 providers, specified in the letter dated September 23, 2003, using the attached "Authorization For Release of Health Information Pursuant to HIPAA" form and the form required by Eastern Long Island Hospital. The attached "Authorization For Release of Health Information Pursuant to HIPAA" form and the instruction page for its use are available on the New York State Unified Court System website < www.nycourts.gov > by clicking on "Courts" then "Forms" then "HIPAA." Plaintiff is to provide defendants with said 11 authorizations, if he has not already done so, within twenty (20) days of the entry date of this order. In the event that plaintiff fails to comply with said directive, plaintiff will be precluded from presenting any evidence at trial with respect to his alleged injuries a result of the accident.

Dated:_______________________________________________________________

J.S.C.

FINAL DISPOSITION X NON-FINAL DISPOSITION