By Order to Show Cause (Lynch, J.) returnable April 4, 2008 defendants seek an order pursuant to CPLR 3126 dismissing the complaint or, alternatively, precluding plaintiff from calling his treating physicians as witnesses, together with sanctions. By Notice of Cross Motion dated March 31, 2008 plaintiff opposes the motion and seeks costs. [*2]

After the filing of a Note of Issue on December 3, 2007, defendants demanded and received medical authorizations to interview plaintiff's nonparty treating physicians, compliant with the Health Insurance Portability and Accountability Act of 1996 (see 42 USC §1320(d) et seq. [herineafter HIPAA]). The submissions recount that defendants' counsel scheduled an interview with one of the treating physicians on March 7, 2008. At that appointment, plaintiff's counsel arrived and informed defense counsel of her intention to sit in on the interview. The defendants' interview did not go forward. Defendants subsequently learned of a January 18, 2008 letter from plaintiff's counsel addressed to the treating physicians, reading in pertinent part as follows:

"As if physicians are not busy enough, New York State's highest Court has recently determined that physicians should take time out of their day and speak with attorneys who are defending cases.

My office is obligated to supply them with an authorization permitting them an opportunity to speak with you about the care and treatment that you gave to your patient and my client. Please be advised that you are not required by law to have this conversation or meeting. Simply, I must supply the defense counsel with authorizations permitting them the opportunity. The choice is yours. However, as an advocate for my client and your patient, I am respectfully requesting that if you do decide to have a conversation or interview with defense counsel, that you please notify me of the date and time and I will make myself available to sit in as well.

If this causes undue hardship, kindly advise."

(See Exhibit "J" annexed to motion).

Defendants maintain that this communication was unduly prejudicial and an effort to undermine their right to interview the treating physicians in accord with the recent Court of Appeals decision in Arons v. Jutkowitz, 9 NY3d 393. Defendants emphasize this is all the more so since plaintiff's counsel's firm was involved in a separate action, entitled Poser v. Vanovitsky (___ AD3d ___ [3rd Dept., 12/27/07]) in which the Third Department applied Arons. Not to be overlooked is that the January 18, 2008 letter quoted above mistakenly refers to "Gregory Poser" as the client.

In Arons, the Court of Appeals confirmed that an "attorney may interview an adverse party's treating physician privately where the adverse party has affirmatively placed his or her medical condition in controversy" (emphasis added) (Arons v. Jutkowitz, supra., at pp 401-402). A defense attorney who seeks to interview a nonparty treating physician is entitled to receive a HIPAA [*3]compliant authorization from the plaintiff, and required to "simply reveal the client's identity and interest, and make clear that any discussion with counsel is entirely voluntary and limited in scope to the particular medical conditions at issue in the litigation" (Arons, supra at p. 410). The Court of Appeals emphasized that "physicians remain entirely free to decide whether or not to cooperate with defense counsel" (Arons, supra at p. 416).

With these principles in mind, the Court agrees with defendants that they are entitled to privately interview plaintiff's treating physicians, without interference from plaintiff's counsel. In her January 18, 2008 letter to the treating physicians and her appearance at the March 7, 2008 appointment, plaintiff's counsel has unduly interfered with defendants' rights under Arons. Defendant's requested sanctions, however, go too far. While the Court is mindful of the upcoming July 7, 2008 trial day certain, the appropriate remedy is to allow defendants a further opportunity to conduct private interviews with the treating physicians free of any interference from plaintiff's counsel. Moreover, defendants are hereby authorized to amend their expert witness disclosure based on any new information obtained during the interviews provided any such amendment must be delivered to plaintiff no later than June 30, 2008. In addition, defendant is hereby awarded reimbursement in the amount of $350.00 for the disrupted March 7, 2008 appointment, together with attorney fees on the motion in the amount of $1,000.00 payable by plaintiff's counsel within twenty (20) days of the date this Decision and Order is served with notice of entry.

With respect to the balance of defendants' argument that other delays in discovery, coupled with the Arons issues discussed above, warrants a dismissal of the complaint, the Court declines to do so.

Given the above, plaintiff's cross motion is denied, without costs.

This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorney for defendants. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

SO ORDERED!

ENTER

Dated: Albany, New York

May, 2008 [*4]

_______________________________________

Michael C. Lynch

J.S.C.

Papers Considered:

1.Order to Show Cause (Lynch, J.) dated March 17, 2008, with affidavit of Lauren Snyder

dated March 17, 2008, and Exhibits "A - CC";

2.Affidavit of Lauren Snyder dated April 27, 2008;

3.Notice of Cross Motion dated March 31, 2008, with affidavit of Maureen Keegan dated

March 31, 2008 and affidavit of Derek Spada dated March 31, 200.