This matter is before the Court for decision on 1) the Order to Show Cause filed by Plaintiff Brad W. Cronin ("Brad" or "Plaintiff") on February 28, 2011 (motion sequence No. 2), 2) the Order to Show Cause filed by Plaintiff on June 3, 2011 (motion sequence # 3), 3) the motion filed by Defendant Laureen C. Harris ("Laureen") on June 3, 2011 (motion sequence # 4), 4) the motion filed by Defendant Matthew J. Cronin ("Matthew") on July 28, 2011 (motion sequence # 5), and 5) the cross motion filed by Plaintiff on August 15, 2011, all of which were submitted on August 26, 2011 (motion sequence # 6). For the reasons set forth below, the Court

1) denies Matthew's motion to quash (motion sequence # 5); and 2) grants the branch of Plaintiff's motion (motion sequence # 5) for an Order directing Matthew to submit to an independent physical/medical and mental examination, and directs Matthew to comply, on or before October 14, 2011, with the Notice of Submit Physical and Mental Examination previously served by Plaintiff.

The Court reserves decision on motion sequence numbers 2, 3, 4 as well as the remaining branches of motion sequence number 6. The Court directs that the temporary restraining order previously issued by the Court shall remain in effect pending further Order of the Court.

The Court directs counsel for the parties to appear before the Court for a conference on October 27, 2011 at 9:30 a.m. Motion sequence numbers 2, 3 and 4 will also appear on the Court's motion calendar that day. Counsel for the parties shall not be required to appear at the conference on September 21, 2011 as previously scheduled.

BACKGROUND

A. Relief Sought

In motion sequence number 2, Plaintiff moves for an Order 1) pursuant to CPLR § 6301, et. seq., enjoining and restraining Laureen, directly or indirectly, from contacting or communicating with, for the purpose of soliciting or inducing clients ("Clients") of the law firm of Cronin Cronin & Harris, P.C. ("CCH") by advising clients of the pendency of this action, and/or in any manner soliciting Clients of CCH and their prospective tax certiorari and condemnation legal business, unless specifically authorized by Order of this Court; 2) using any of the current professional and administrative staff of CCH to provide services or assistance to her in connection with the defense, or prosecution of any claims, by her in this lawsuit, or soliciting or inducing any of the professional or administrative staff of CCH to join her in any future legal practice or venture; and 3) using any funds of CCH to pay legal expenses of any individual party.

In motion sequence number 3, Plaintiff moves for an Order 1) pursuant to CPLR § 6301, et. seq., enjoining and restraining Laureen, directly or indirectly, from a) causing, encouraging, or inducing Clients of CCH to discontinue, terminate or substitute the services of Plaintiff upon [*2]any pending CCH legal matters or cases currently being handled by Plaintiff for such Clients; and b) directly or indirectly soliciting, encouraging, and inducing Clients and their prospective tax certiorari and condemnation legal business to be serviced by, or under the direction of Laureen, rather than Brad, unless specifically authorized by Order of this Court; and 2) granting such an enlargement, extension or modification of the temporary restraining order ("TRO") which may be necessary and appropriate to carry out and enforce the existing TRO which provides that Laureen is enjoined and restrained from "directly or indirectly soliciting clients" of CCH and their prospective tax certiorari and condemnation legal business, unless specifically authorized by the Court.

In motion sequence number 4, Laureen moves for an Order 1) pursuant to CPLR § 2304, quashing the Subpoena Duces Tecum and Subpoena Ad Testificandum ("Subpoenas") served by Plaintiff to the law firm of Jackson Lewis LLP ("Jackson Lewis"); 2) granting Defendant's application for a protective order to preclude Plaintiff from deposing, and obtaining documents from any Jackson Lewis attorney, relating to the advice and counsel provided to Cronin, Cronin & Harris, P.C. ("CCH") in connection with this matter; 3) directing a conference to allow the Court to review the privileged information to enable it to make a determination to quash the Subpoenas, and grant Defendant's application for the aforementioned protective order; and 4) in the event the Court denies Defendant's application to quash the Subpoenas, directing that the return date of the Subpoenas be extended to a date no less than 30 days after the Court's issuance of its determination of Defendant's application to quash the Subpoenas.

In motion sequence number 5, Matthew moves for an Order quashing Plaintiff's Notice to Submit to Physical and Mental Examination ("Notice to Submit") and for a protective order pursuant to CPLR § 3122 with respect to the discovery of any medical records and the taking of a psychological or other examination of Matthew as allegedly protected by the physician-patient privilege under CPLR § 4504.

In motion sequence number 6, Plaintiff moves for an Order 1) pursuant to CPLR §§ 3121

and 3124, directing Matthew to submit to an independent physical/medical and mental examination; 2) pursuant to CPLR § 3212(e), granting partial summary judgment in Plaintiff's favor, declaring that Matthew is suffering from a permanent disability ("disability") under the Shareholders' Agreement ("Agreement") of CCH; 3) pursuant to CPLR § 3126, striking Matthew's answer and defenses for his alleged wilful failure to disclose and directing partial summary judgment on the issue of Matthew's Disability under the Agreement and awarding attorney's fees in Plaintiff's favor; 4) pursuant to BCL §§ 1113 and 1115, enjoining and restraining Matthew and Laureen from relocating the offices ("Offices") of CCH and/or signing a new lease, and appointing an independent Temporary Receiver with responsibility for the management of CCH's financial operations pendente lite; and 5) directing the production, pursuant to Plaintiff's outstanding subpoena, of the files of the law firm of Jackson Lewis, retained on behalf of CCH by Laureen and Matthew to provide employment advice, and denying Defendants' motion to quash that subpoena.

B. The Parties' History

The parties' history is discussed in a prior decision of the Court dated March 1, 2011 ("Prior Decision") in which the Court granted Plaintiff's application for a sealing order ("Sealing Order") to the extent that the Court permitted Plaintiff to file the Complaint under seal, but declined to grant a blanket imprimatur to authorize the parties to file any future documents or records under seal absent an express Order of the Court. The Court incorporates the Prior [*3]Decision herein by reference. No party has made any subsequent application to file documents or records under seal.

As noted in the Prior Decision, CCH is a law firm concentrating in tax certiorari proceedings and condemnation law. In this action, Brad seeks declaratory and injunctive relief and judicial dissolution of CCH, allegedly to protect the welfare of CCH and its clients as a consequence of the recent disability and incapacity of Matthew, a founding partner-shareholder of CCH. Matthew is the father of Brad and Laureen. As detailed in the Complaint, Plaintiff alleges that Matthew's physical incapacity and mental impairment render him unable to participate in the practice, management and administration of CCH.

On February 28, 2011, the Court issued the TRO which directed that, pending the hearing of the Order to Show Cause filed February 28, 2011 and further Order of this Court, Laureen is enjoined and restrained from:

Directly or indirectly soliciting clients ("Clients") of [CCH] and their prospective

tax certiorari and condemnation legal business unless specifically authorized by

Order of this Court;

Utilizing any of the current professional and administrative staff of CCH to provide

services or assistance to her in connection with the defense (or prosecution of any

claims) by her in this lawsuit, or soliciting or inducing any of the professional or

administrative staff of CCH to join her in any future legal practice or venture; and

Utilizing any funds of CCH to pay legal expenses of any individual party[.]

The Court denied Plaintiff's application, made in connection with his Order to Show Cause filed June 3, 2011, for an additional temporary restraining order.

Paragraphs 4(B) and (C) of the Agreement (Ex. A to 8/11/11 Matthew Aff.) provide, in pertinent part, as follows:

This agreement shall bind each of the parties jointly and severally to each

other jointly and severally, in consideration of their joint and several obligations

herein stated; and it shall likewise bind them and all persons to whom stock of the

corporation is issued by the corporation. In the event that any stockholder dies,

withdraws, is disqualified to hold stock in the corporation, is permanently

disabled or is expelled..., the corporation shall purchase the stock of the departing

shareholder, and the same shall be sold to the corporation as hereinafter stated.

B. A permanent disability...shall mean that there is a medically determinable physical

or mental impairment which renders the individual unable to perform all or

substantially all of his or her normal duties for the corporation, which loss of

physical or mental function so reduces his or her efficiency that they are rendered

unable to work for the foreseeable future.

C. A partial disability...shall mean that there is a medically determinable, physical

or mental impairment which renders the individual unable to perform all of his or

her normal duties for the corporation for a limited period of time with the anticipation

that the stockholder will, after a period of time, return to to [sic] full employment. [*4]

Schedule A of the Agreement sets forth compensation provisions for a disabled stockholder. It also provides, at Paragraph 3, that after two continuous years of disability, the disabled stockholder shall be deemed to be permanently disabled, shall receive no further salary or bonuses, and shall have the option of 1) returning to full employment; 2) continuing on disability leave without salary or bonuses; or 3) exercising his withdrawal option under the Agreement.

Brad has alleged that Laureen has engaged in improper activity, including communications with CCH Clients, to the detriment of CCH. It is Brad's position that Matthew is disabled, as reflected by his claim that:

With remarkable indifference to the acutely sensitive claims in this action, which

center upon the obvious medical and legal disability of [Matthew], [Laureen] has

recently arranged for a new signature card to be executed by [Matthew] with

CCH's bank (Citibank), apparently so that [Matthew] can sign law firm checks,

despite available medical evidence indicating his lack of capacity to even handle

routine household expenditures without the assistance of other family members

and professional support.

Brad 2/25/11 Aff. at ¶ 2(e)

Brad affirms that he is seeking judicial dissolution of CCH on the grounds that Matthew, who is 84 years old, " who suffered a debilitating stroke over one year ago in May 2010 [underlining in original], who has undergone brain surgery, has had multiple ensuing hospitalizations, and has been unable to return to CCH's office on a single [id.] occasion ever since, is legally incapacitated from practicing law and thus can no longer continue to act as a shareholder and director of [CCH]" (Brad 6/2/11 Aff. at ¶ 1).

Laureen and Matthew dispute Brad's claim that Matthew is disabled. Laureen affirms that she consented to Plaintiff's prior application for a sealing order out of concerns "of the effect that Plaintiff's distorted characterization of Matthew's medical condition would have on the welfare of [CCH], of which Matthew is a partner and the sole founder" (Laureen 3/8/11 Aff. at ¶ 3). In response to recent concerns expressed by Clients regarding Matthew's well being, Laureen advised them that Matthew had made a " miraculous' recovery, as described by one of his doctors, from the stroke that he suffered almost ten months ago" (id. at ¶ 17).

Matthew affirms that he is "not the person described in the papers and supporting Affidavit of the Plaintiff" (Matthew 3/11/11 Aff. at ¶ 3). He avers further:

My mind is well aware of what is transpiring, I have independent decision making

processes, I exercise independence and am able to vote, discern what I want and do

not want, am able to voice my opinion (although at times it may not be as clear as in

the past), and do not want to be categorized as a non-entity unable to partake in the

events of Defendant corporation, CCH.

I emphatically inform this Court that I am not controlled by, there was no overreaching

or undue influence or any conduct of such nature, by Defendant Harris. She is my

daughter, the Plaintiff is my son, and we are a family that now has an internal problem

which should not cause any dissolution of a corporation of which I am the founder and

have worked all of my life to see that the firm is prosperous and enjoys the reputation [*5]

that it has attained. I do not want any dissolution in order to benefit and profit one of

the Shareholders, the Plaintiff herein, all to the prejudice of the three Defendants in

this matter.

For the Court's edification, I resent the statements made about your deponent by the

Plaintiff and any reference thereto by his attorney.

Id. at ¶¶ 3-5.

The Notice to Submit (Ex. A to Vichnick 7/28/11 Aff.) requires Matthew to submit to a "mental, cognitive, and physical examination, to be conducted by Bryan Freilich, Psy.D., Neuropsychologist and Assistant Professor of Psychiatry, c/o Montefiore Medical Center, Department of Psychiatry and Behavioral Sciences, 111 East 210th Street, New York, New York, to be conducted at the offices of [Plaintiff's Counsel] or at the personal residence of [Matthew]."

Plaintiff has provided correspondence dated August 5, 2010 from a physician who treated Matthew (Ex. D to 8/11/11 Brad Aff.). That correspondence reflects that on May 10, 2010, Matthew was admitted and found to have a "large frontal hemorrhage" that required a craniotomy and left him with "a residual left hemiplegia and profound aphasia." Matthew experienced "[w]ord finding difficulties and some receptive difficulties" and it was the opinion of the treating physician that Matthew "cannot make any financial or personal decision because of his neurological condition."

C. The Parties' Positions

With respect to the Notice to Submit, Defendants argue, inter alia, that 1) the proposed examination is inappropriate because Matthew's condition is not in controversy; 2) assuming arguendo that Matthew's condition is in controversy, discovery relating to Matthew's medical condition is shielded by the physician-patient privilege, which he has not waived; and3) assuming arguendo that the medical examination takes place and Matthew is found to be disabled, that result is "wholly inconsequential" (Vishnick Aff. in Supp. at ¶ 17) and will not serve as a basis for Plaintiff to seek to remove Matthew as a shareholder and director of CCH.

Plaintiff submits, inter alia, that 1) Matthew's medical and mental condition are in controversy, both by the claims and affirmative defenses in this action, and because the Agreement contractually binds Matthew to a "medically determinable" standard for ascertaining the disability of a shareholder; 2) the examination of Matthew is not shielded by any physician-patient privilege because Matthew's counsel previously consented to the examination, and because Matthew waived any privilege by disclosing his own physician's correspondence and agreeing to the provision in the Agreement requiring that the issue of a shareholder's disability is to be "medically determined;" and 3) the issue of Matthew's potential disability is relevant because it bears on whether Matthew may continue as a shareholder, President and voting director of CCH.

RULING OF THE COURT

A. Physical or Mental Examination of Party

CPLR § 3121, titled "Physical or mental examination," provides as follows:

(a) Notice of examination. After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody [*6]or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control. The notice may require duly executed and acknowledged written authorizations permitting all parties to obtain, and make copies of, the records of specified hospitals relating to such mental or physical condition or blood relationship; where a party obtains a copy of a hospital record as a result of the authorization of another party, he shall deliver a duplicate of the copy to such party. A copy of the notice shall be served on the person to be examined. It shall specify the time, which shall be not less than twenty days after service of the notice, and the conditions and scope of the examination. (b) Copy of report. A copy of a detailed written report of the examining physician setting out his findings and conclusions shall be delivered by the party seeking the examination to any party requesting to exchange therefor a copy of each report in his control of an examination made with respect to the mental or physical condition in controversy.

CPLR § 3124, titled "Failure to disclose; motion to compel disclosure," provides as

follows: If a person fails to respond to or comply with any request, notice, interrogatory,demand, question or order under this article, except a notice to admit undersection 3123, the party seeking disclosure may move to compel compliance or a response.

The Court of Appeals recognized in Koump v. Smith, 25 NY2d 287 (1969), that there is a strong presumption in favor of discovery. Dillenbeck v. Hess, 73 NY2d 278, 286 (1989). Full disclosure of all evidence material and necessary in the prosecution or defense of an action is ordinarily mandated by CPLR § 3101. Id., quoting Koump at 300. Consequently, where the mental or physical condition of a party is in controversy, a notice may be served pursuant to CPLR § 3121(a) requiring that the party submit to a medical examination or make available for inspection relevant hospital and medical records.

The initial burden of proving that a party's physical condition is "in controversy" is on the party seeking the information and it is only after such an evidentiary showing that discovery may proceed under the statute. Id. at 287, citing Koump at 300. Once this preliminary burden is satisfied, however, discovery still may be precluded if the requested information is privileged and thus exempted from disclosure. Dillenbeck, 73 NY2d at 287, citing CPLR § 3101(b). By expressly providing an exception for privileged information, the statutory scheme clearly contemplates that certain information, though otherwise material and relevant to a legal dispute, shall not be obtainable where it is shown to be privileged. Id. Thus, Physician-patient communications, privileged under CPLR § 4504, may therefore be shielded from discovery. Accordingly, when it has been established that the requested information is subject to discovery under CPLR § 3121(a), the burden shifts to the person claiming the privilege to assert it by [*7]seeking a protective order pursuant to CPLR § 3122. Id., citing Koump at 294 and Bloodgood v. Lynch, 293 NY 308, 314 (1944). 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. Id., citing CPLR § 4504(a); Koump at 294; 5 Weinstein-Korn-Miller, NY Civ. Prac. ¶ 4504.19.

The enactment of CPLR § 4504 regarding the physician-patient privilege significantly changed the provisions of section 354 of the former Civil Practice Act by eliminating the requirement that any waiver of the physician-patient privilege be made expressly by the patient in open court or by stipulation. Instead, CPLR § 4504 provides that, as with the attorney-client privilege, waiver may be implied. Mayorga v. Tate, 302 AD2d 11, 17 (2d Dept. 2002), citing Lynch v. Mutual Life Ins. Co. of NY, 55 Misc 2d 179, 181 (1967), quoting Second Preliminary Report of the Advisory Committee on Practice and Procedure (1958, at 92). This amendment represented a strong trend away from any strict limitation on the waiver. Id. (internal citations omitted).

B. Application of these Principles to the Instant Action

The Court is mindful of the difficult and sensitive nature of this internecine dispute. Plaintiff's motion involves the request by a son for the physical and mental examination of his own father in connection with a business dispute, notwithstanding the claims of Matthew and Laureen that Matthew is not disabled. The Court is constrained to conclude that the physical and mental fitness of Matthew is at issue, in light of (1) the relevant provisions in the parties' Agreement set forth above, (2) the relief sought by Plaintiff and (3) the evidence before the Court, including correspondence from Matthew's treating physician, that calls into question Matthew's ability to function as a member of CCH. The Court hastens to add that the Court has not formed an opinion as to Matthew's fitness, but rather has determined that the requested examination is appropriate. The Court also concludes that Matthew's execution of the Agreement, which defines a permanent disability by making reference to a "medically determinable physical or mental impairment," constitutes a waiver of the physician-patient privilege under these circumstances.

In light of the foregoing, the Court 1) denies Matthew's motion (motion sequence number 5) for an Order quashing Plaintiff's Notice to Submit with respect to the discovery of any medical records and the taking of a psychological or other examination of Matthew; and2) grants the branch of Plaintiff's motion (motion sequence number 6) which seeks an Order pursuant to CPLR §§ 3121 and 3124 directing Matthew to submit to an independent physical/medical and mental examination. The Court directs Matthew to comply with the Notice of Submit on or before October 14, 2011.

The Court reserves decision on motion sequence numbers 2, 3, 4 as well as the remaining branches of motion sequence number 6. The Court directs that the TRO shall remain in effect pending further Order of the Court.

All matters not decided herein are hereby denied.

This constitutes the decision and order of the Court. [*8]

The Court directs counsel for the parties to appear before the Court for a conference on October 27, 2011 at 9:30 a.m. Motion sequence numbers 2, 3 and 4 will also appear on the Court's motion calendar that day. Counsel for the parties shall not be required to appear at the conference on September 21, 2011 as previously scheduled.

ENTER

DATED: Mineola, NY

September 7, 2011

__________________________

HON. TIMOTHY S. DRISCOLL

J.S.C.