The following papers have been read on this motion:

Notice of Motion/Order to Show Cause/Papers Numbered

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1 & 2

Opposing Affidavits (Affirmations)3

Reply Affidavits (Affirmations)4

_______________(Affirmation)_

Other Papers

Is the plaintiff's HIV status and related treatment "at issue" in slip and fall action thereby waiving the privilege afforded to HIV/AIDS information, when the plaintiff has refused to answer questions regarding his diagnosis and treatment and has objected to the disclosure?

This Court holds that the plaintiff has put his past and present medical condition "at issue" by bringing the instant action and therefore the medical records sought by the defendant are discoverable. However, unfettered disclosure is not granted. In light of the specific protections afforded to HIV/AIDS medical documentation the disclosures will be strictly monitored and limited accordingly.

It is preliminarily ORDERED:

(1) the Clerk is directed to place this matter in its entirety, under seal and not made available to any person, except to the extent necessary to conduct any proceedings in connection with the determination of whether to grant or deny the application, including any appeal. The attorneys of record are granted full access.

(2) It is further ORDERED that all subsequent proceedings in connection with this application shall be conducted in camera.

(3) it is further ORDERED that the Plaintiff is given anonymous status and hereafter shall [*2]be referred to as "John Doe" in all situations in this proceeding. The Caption is therefore amended to read as follows: ———————————— 1;————————————&# 151;—-

x

John Doe,

Plaintiff,

-against-

Sutlinger Realty Corp.,

Defendant. ———————————— 1;————————————&# 151;——

x

(4) it is further ORDERED that this decision will be first served upon the plaintiff by facsimile so that Plaintiff may be put on notice and make such further application as Plaintiff may be so advised prior to the publication of this decision, again by facsimile service upon defendant's counsel, which shall be made 15 days thereafter in the absence of further application by the plaintiff.

(5) This matter is referred to a special referee to hear and report as to the statutorily required findings and to assess the relevance of the medical information sought.

(6) Defense counsel is barred from conveying this decision and Order and any information as to the plaintiff's health status to any person other than an Appellate personnel at the Appellate Division, Second Department, pending further proceedings.

(7) The Note of Issue is stricken as it is apparent that there is outstanding discovery.

The defendant moves for an order vacating the note of issue, striking the complaint for failure to comply with defendant's discovery demands. Defendant seeks an order compelling the plaintiff to provide HIPAA compliant authorizations for medical records specific to his HIV treatment, requiring the plaintiff to answer questions regarding his HIV condition and treatment, and submit to additional IMEs. In support of the motion the defendant states that the HIV information is essential to the defense of the action. Specifically defendant claims that the information is relevant to the loss of enjoyment of life, life expectancy, whether plaintiff's disability was due to HIV or the accident and plaintiff's possible increased susceptibility to fractures and infection. Defendant also claims that the medical records are not privileged as the plaintiff, by bringing this action, has placed his medical conditions "at issue".

The defendant became aware of plaintiff's HIV status through medical records provided during discovery. Plaintiff refused to answer any questions pertaining to his HIV status, treatment and symptoms at his deposition and further refused to provide unrestricted HIPAA authorizations. Plaintiff objects to providing the records and information as he contends that there has been no claim for exacerbation of HIV, and therefore the records are not relevant or probative. Plaintiff further objects to the disclosure on the basis that HIV/AIDS information is afforded significant privacy protection through the Public Health Law and it would be an invasion of his privacy to order such disclosure. Defendant counters with the argument, that as the plaintiff's HIV status has already been disclosed, even if in error and unauthorized, the privacy envisioned by the legislature is no longer a concern.

The Legislature has enacted strict guidelines regarding the release of confidential HIV and AIDS information. A general release of medical records is insufficient for disclosure of HIV and AIDS related information. Preliminarily it is essential to recognize that there is no indication that defense counsel received the records which contain the HIV related information in any unethical, improper or illegal means. However, it is not apparent that the medical facilities which provided defense counsel with the records are not in violation of the Public Health Law. The instant ruling has no bearing on any possible remedies available to plaintiff against the medical facilities.^[FN1]

Public Health Law � 2785 outlines the required steps for a judicial order to disclose HIV/AIDS related records.^[FN2] The statute states in relevant part:

Notwithstanding any other provision of law, no court shall issue an order for the disclosure of confidential HIV related information, except a court of record of competent jurisdiction in accordance with the provisions of this section.

A court may grant an order for disclosure of confidential HIV related information upon an application showing: (a) a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding.. .

Upon receiving an application for an order authorizing disclosure pursuant to this section, the court shall enter an order directing that all pleadings, papers, affidavits, judgments, orders of the court, briefs and memoranda of law which are part of the application or the decision thereon, be sealed and not made available to any person, except to the extent necessary to conduct any proceedings in connection with the determination of whether to grant or deny the application, including any appeal. Such an order shall further direct that all subsequent proceedings in connection with the application shall be conducted in camera, and, where appropriate to prevent the unauthorized disclosure of confidential HIV related information, that any pleadings, papers, affidavits, judgments, orders of the court, briefs and memoranda of law which are part of the application or the decision thereon not state [*4]the name of the individual concerning whom confidential HIV related information is sought.

The Legislature further delineated the process of assessing a "compelling need."

"[t]he court shall provide written findings of fact, including scientific or medical findings, citing specific evidence in the record which supports each finding, and shall weigh the need for disclosure against the privacy interest of the protected individual and the public interest which may be disserved by disclosure which deters future testing or treatment or which may lead to discrimination.

Statutorily, any order of the court shall:

(a) limit disclosure to that information which is necessary to fulfill the purpose for which the order is granted; and (b) limit disclosure to those persons whose need for the information is the basis for the order, and specifically prohibit redisclosure by such persons to any other persons, whether or not they are parties to the action. . .

In light of the specifically worded, thought out and penal nature of the Public Health Law it strikes this Court odd, there is a dearth of cases in this area. Perhaps due to the sealing requirements decisions dealing with this issue have not been published. There is a very similar case in Oneida County, where the Court took extraordinary measures to craft the order in a way which maintained the highest level of protection for the plaintiff's privacy. Fran Doe v. G.J. Adams Plumbing, Inc. 8 Misc 3d 610 [NY Supp 2005].^[FN3] It is the intention of this Court to bring Kings County into accord with Oneida County by utilizing the language utilized in that opinion.

CPLR 3101(a) requires litigants to provide "full disclosure of all matter material and necessary in the prosecution or defense of an action." It is well established that the Courts of new York favor full disclosure. Therefore, when the medical condition of a party is "at issue" confidential HIV information is discoverable, if necessary, however with the appropriate safeguards.

The Plaintiff in his bill of particulars has alleged, among other injuries, "a left pilon fracture and distal fibular fracture necessitating surgery...developed cellulites...[injuries which are] permanent and lasting. Plaintiff's argument that because he has not made any claims that the accident exacerbated his HIV fails to consider a myriad of other factors which HIV may effect. The plaintiff has put his past, present and future medical condition at issue when bringing this action. Ignoring the information that plaintiff is HIV positive and the possible effect that has had on his overall past and future health is not only inappropriate but would violate the defendant's right to a fair trial, especially when a jury may be charged with judging plaintiff's medical condition and if appropriate placing an award based on life expectancy and loss of enjoyment of life. See, Dwight B. v. Board of Educ. Of City of Newburgh, 157 Misc 2d 1004 [N.Y Supp., 1993].

It is the intention of this Court to carefully balance the rights of the parties to this litigation. On the one side the plaintiff has asserted his position that his HIV status and attendant medical [*5]treatment is personal in nature and objects to its disclosure. The legislature has determined that plaintiff's concerns are valid and has created a framework for disclosure. It is further the intention of this Court not to allow the plaintiff's HIV status to become a diversion during the remainder of this litigation. See, Fran Doe v. G.J. Adams Plumbing, Inc. 8 Misc 3d 610 [NY Supp 2005].

In support of the motion the defendant has submitted an affirmation from an orthopedist which states that an individual with HIV may be at a greater risk of infection from surgery with this condition and possible greater susceptibility to fracture. The expert affirmation is probative and admissible as to the necessity for the disclosure. However, the information which was obtained from the internet is not admissible as it is not authenticated nor has any foundation been laid for its submission.

The defendant further seeks an Order compelling the plaintiff to provide additional discovery. The plaintiff has provided an affidavit in response to the demands that states he is not in possession of the evidence, and has re-given the limited information in his possession. Therefore, the Court cannot force a party to produce that which he does not hold.

In the alternative, the defendant requests that the complaint be dismissed for the alleged spoliation of evidence by the plaintiff. Specifically, defendant claims that a diary maintained by plaintiff listing the injuries and treatment he obtained following the subject accident."When a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party of the ability to prove its claim, the responsible party may be sanctioned by the striking of its pleading" Gotto v. Eusebe—Carter, 69 AD3d 566, 567 [2d Dept., 2010].

"[w]here a party did not discard crucial evidence in an effort to frustrate discovery, and cannot be presumed to be responsible for the disappearance of such evidence, spoliation sanctions are inappropriate" Shay v. Mozer, Inc., 80 AD3d 687 [2nd Dep't 2011] (internal citations omitted).

In this matter, the missing diary, which allegedly consisted of details of plaintiff's injuries (including doctor visits, medications and treatments) contained information readily available to the defendant through disclosure of plaintiff's non-HIV related medical records. Furthermore, in plaintiff's affirmation he attests that there were many people who came into his apartment on a daily basis to assist and care for him, some volunteers who he was not acquainted with and at a certain point it disappeared. In light of plaintiff's assertions and defendant's failure to allege any real prejudice the defendant's request is denied.

Therefore, while the defendant may have a valid need for the HIV related information, the proper channels must be utilized in order to obtain the information sought. It is not this Court's role to contravene the intent of the legislature.

This constitutes the decision and order of the court.

J.S.C.