Two (2) issues are presented for determination during the hearing currently occurring pursuant to Mental Hygiene Law ("MHL") Section 81.11. The first is whether the Court should strike the entire testimony of Social Worker Sharon Perkins because it violates the privilege against disclosure set forth in CPLR §4508. The second is whether the Court Evaluator's separate Medical Addendum should be precluded from its introduction into evidence at the hearing, thereby further precluding the Court Evaluator from testifying about it if asked to do so. The petitioner, court evaluator and respondent have each submitted a memorandum of law addressing these issues.

Sharon Perkins ("Perkins") is a licensed Social Worker employed by the Veteran's Administration ("VA"). She started assisting the alleged incapacitated person ("AIP") in 2010 when he started receiving its services. Perkins, along with a registered nurse, psychologist, home health aide, dietician and nurse practitioner were part of a team brought together to assist the AIP with his activities of daily living ("ADL's"), and create Service and Discharge plans. The bulk of her testimony has related to the plan which was developed by the various professionals interacting with the AIP either individually or in concert with each other. Services for the AIP were discontinued in May, 2012 because of the volatility of the home environment involving the AIP and Giovanna Strano. The witness personally observed multiple verbal altercations between them when attempting to assist the AIP at his residence. While services to the AIP are no longer provided to him at his home, he nevertheless can avail himself of VA programs and services as an outpatient.

By affirmatively placing his mental condition in issue by opposing the petition for the appointment of a guardian for his personal care needs and property management needs, the AIP has waived the privilege under CPLR §4508. (Robles v. Merrill Lynch/WFC/L, Inc., 40 AD3d 412 [1st Dept. 2007].) The privilege does not attach to communications between the AIP and the social worker where, as here, they occurred in the presence of a third party. (People v. Alaire, 148 AD2d 731, 737 [2d Dept. 1989].) The privilege also does not apply to the statement the AIP made on or about April 5, 2011 that he was afraid to return home because he felt unsafe, primarily because of Giovanna Strano. To preclude it defies logic. Secondly, that type of statement falls into the policy based exception found in CPLR §4508(a)(2) which relates to the AIP's revelation of a future harmful action. (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, Civil Practice Law and Rules, §4508, at 286.)

By opposing the instant petition, the AIP has affirmatively placed his mental and physical condition in issue. (Robles v. Merrill Lynch/WFC/L, Inc., supra.) This Court previously determined the court evaluator should have access to the AIP's medical records in order to formulate an informed report with accompanying recommendation as required by the statute. (MHL §81.09[c][5].) Furthermore, the statute authorizes the disclosure of the AIP's medical, psychological and/or psychiatric records if, as here, the Court determines that those records are likely to contain information which will assist the court evaluator in completing the report ordered by the court. (MHL §81.09[d]; 67 NYJur 2d, Infants and Other Persons Under Legal Disability, §392.) To disallow the medical addendum and associated testimony from the court evaluator would be wholly counterproductive. Any damage, injury or embarrassment which may be incurred by the AIP by such admission into evidence and testimony based upon it can be minimized by an order sealing the record, in whole or in part. (Matter of Goldfarb, 160 Misc 2d 1036, 1044 [Sup Ct, Suffolk Cty 1994]; MHL §81.14[b].)

Based upon the foregoing, the respondent's objection and request to strike the testimony of Social Worker Sharon Perkins is overruled/denied, and the respondent's objection to the introduction of the court's evaluator's medical addendum to her report as and when it is offered into evidence is overruled.

The foregoing constitutes the order of the Court.

Dated:Poughkeepsie, New York

September 26, 2012

ENTER

HON. JAMES D. PAGONES, A.J.S.C.