This case was assigned to this court on or after January 3, 2006 by the Administrative Judge of this County.

This application is denominated as a motion to renew (CPLR §2221), prior motions on the subject having been decided by this Court on February 1, 2005 and October 18, 2005, (Roberto, J). A motion to renew must be supported by new or additional facts which existed but were not known to the renewing party at the time of the prior motion, and this motion is predicated upon the defendant's examination before trial, which had not yet been taken and thus did not exist at the time the prior motions were submitted. See, Johnson v. Marquez, 2 AD3d 786 (2d Dept. 2003). However, the motion may also be deemed a motion to renew based on new, previously existing evidence that had not been brought to the plaintiff's attention until after the prior motion was decided, notwithstanding its source. Cf., Puntino v. Chin, 288 AD2d 202 (2d Dept. 2001), [renewal based on the appearance of a further medical report mailed to the plaintiff the day Court decided the motion]. As the new evidence here existed beforehand but was not revealed until the examination before trial, the plaintiff's motion to renew is granted. [*2]

Turning to the merits, this motion involves the rare but not unprecedented issue of a plaintiff seeking discovery of a defendant's records of mental illness. In the prior decisions, it was held that plaintiff would not be permitted discovery as to defendant's mental condition because this had not been placed in issue by the defendant. Subsequent to the making of the prior motions, however, defendant gave a deposition in which he described himself as being on the "verge of a mental breakdown" and that his "actions weren't rationale." Defendant also stated that he was "really having a mental breakdown" did not know what his "motivation was" and told plaintiff to "ask my psychiatrist for an exact explanation."

Plaintiff, a former patient of defendant psychiatrist, sues for medical malpractice and intentional infliction of emotional distress based on her allegation that while she was a patient, she and defendant engaged in intimate sexual relations and phone sex during what were supposed to be psychotherapy sessions. Following an altercation between the parties in defendant's office, plaintiff made a criminal complaint against defendant. Thereafter, defendant was indicted by a Nassau County grand jury for Conspiracy in the Second Degree, ( a "B" Felony), Criminal Possession of a Weapon in the Second Degree (a "C" Felony) and two counts of Criminal Possession of a Weapon in the Third Degree ( a "D " Felony). The indictment encompassed the date of plaintiff's altercation with defendant and includes a count of Conspiracy to Murder, but does not specifically name plaintiff as the target. Defendant ultimately pleaded guilty to a Class D Felony of Criminal Possession of a Weapon.

By the prior decisions and on the facts then known, plaintiff's demand to conduct discovery of defendant's mental and emotional condition was denied. This Court is bound by the prior decisions because they constitute the law of the case; once an issue is judicially determined, that should be the end of the matter for Judges and Courts of coordinate jurisdiction, Francisco v. General Motors Corp., 277 AD2d 975 (4th Dept. 2000); Brooklyn Law School v. Raybon, Inc., 175 AD2d 56 (1st Dept. 1991).

However, since the deposition testimony did not exist, the doctrine of law of the case is not binding on this Court insofar as this decision relies on the new evidence referred to above.

The physician patient privilege is a creation of statute and is embodied in CPLR §4504(a). While it would appear from the statute that the privilege prohibits disclosure only by the professional, it has been held that the privilege does more than act as a restraint on the professional, and that testimony of the patient at trials and at examinations before trial is likewise protected. Hughson v. St. Francis Hospital of Port Jervis, 93 AD2d 491, 497-498 (2d Dept. 1983).

The guide post for determining whether a plaintiff may obtain discovery of a defendant's medical records is found in Dillenbeck v. Hess, 73 NY2d 278 (1984), which enunciated the rule that where a party defending a personal injury action validly asserts the physician patient privilege and has not affirmatively placed his or her medical condition in issue, the plaintiff may not effect a waiver of the privilege merely by introducing evidence that the defendant's physical condition is genuinely in controversy. The initial burden of proving that a defendant's physical condition is "in controversy" is on the plaintiff and it is [*3]only after such an evidentiary showing that the burden is passed to the defendant to demonstrate that the information is privileged. Once the privilege is validly asserted, plaintiff must then demonstrate that it has been waived. Id., at, 280, 286-287.

There is no disputing that the discovery of records and testimony concerning defendant's emotional, mental and psychological condition during the time he was treating plaintiff, as well as an independent psychiatrist examination by a psychiatrist employed by plaintiff, would be barred under the privilege, and the privilege has been asserted by defendant. Accordingly, the focus here is whether defendant's mental condition has now been shown to have been placed in controversy by the defendant, thus waiving his privilege.

Dillenbeck v. Hess teaches that the plaintiff seeking the discovery does not place the matter in controversy but that it takes some conduct by the defendant to cause it to become an issue. Here, this hurdle has been accomplished by plaintiff's proffer of evidence of defendant's behavior in the latter part of 2002 and into early 2003 via the deposition of a person who was also a patient of defendant, given to police authorities at the time of the arrest. This affidavit describes defendant as being depressed, disheveled and slouched, asking questions having nothing to do with treatment, and that the conversation was bizarre.

During ensuing conversations, defendant inquired about acquiring an untraceable gun and silencer, spoke of a plan to kill someone and dump the body in the ocean, stated that he was not afraid of the electric chair and discussed multiple shootings, dismemberment of bodies and disposal of same. The last of these series of conversations took place on the very same day as the altercation between the parties that led to plaintiff's criminal complaint.

A defendant's physical or mental condition may be considered to be in controversy upon an admission of having taken certain medication (Neferis v. DeStefano, 265 AD2d 464 [2d Dept. 1999]) and upon admission by a defendant regarding his own medical condition. Klein v. Levin, 242 AD2d 682 (2d Dept. 1997). But an inability to recall events based on amnesia has been held not to place a defendant's condition in controversy. Casimino v. Thayer, 217 AD2d 951 (4th Dept. 1995).

Just as the heavy drinking conduct of the defendant in Dillenbeck, prior to the accident and her criminal conviction was sufficient to place her condition "in controversy" for purposes of discovery (Dillenbeck, supra, at 288), so too here defendant's unusual behavior and his criminal conviction based on such conduct are sufficient to place his mental condition in controversy for purposes of discovery. Thus, that prong of the Dillenbeck test has been satisfied.

Since it is acknowledged that the information sought is privileged, it is the plaintiff's burden to demonstrate that there has been a waiver.

Waiver of a privilege may be effected when a person has affirmatively placed her mental condition in issue. However, a person must do more than simply deny the allegations, but rather must assert the condition by way of counterclaim or to excuse one's conduct Dillenbeck v. Hess, supra at 287 - 288; cf., Lombardi v. Hall, 5 AD3d 739 (2d Dept. 2004). Waiver has been found to take place when a defendant doctor, in a malpractice case, disclosed his condition to the media (Liverano v. Devinsky 278 AD2d 386 [2d Dept. 2000]), [*4]or when a letter has been released. Farrow v. Allen, 194 AD2d 40 (1993).

Waiver has also been found where a defendant testified that she had taken medication for "nerves" before the subject accident (Neferis v. DeStefano, supra), when a defendant has asserted a lack of memory as a defense (Lopez v. Oquendo, 222 AD2d 24 [1st Dept. 1999]) and when a defendant's visual perception became an issue. Schilling v. Quiros, 23 AD3d 243 (1st Dept. 2005).

Applying these standards to this case in the context of discovery yields the result that the defendant has now affirmatively waived the privilege as to his mental condition. Defendant testified as to his mental problems at his deposition and appears to be excusing his conduct based on the same. The mental distress that defendant claimed took place at a time that was coterminous with the conduct of which plaintiff now complains. Hence, defendant should not be permitted to wield the physician patient privilege against the truth finding process where as here, the protection of the statute (CPLR §4504(a)) and policy dictate otherwise. Dillenbeck v. Hess, supra, at 290 (Bellacosa J., dissenting).

Defendant is directed to provide plaintiff with names of all providers of psychiatric treatment to him, together with authorizations for records of such treatment for the three years preceding the date of his arrest, ie January 8, 2003, to submit to a further deposition based on his mental condition during that period, and to an examination by a psychiatrist chosen by plaintiff.

This decision is confined solely to whether plaintiff may have discovery under New York's policy of liberal disclosure (Liverno v. Devinsky, supra), and is not intended to constitute a determination as to the admissibility of any evidence so obtained.

This shall constitute the Decision and Order of the Court.

E N T E R

DATED: May 8, 2006

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice

440 Ninth Avenue [*5]

New York, New York 10001-1688