By order to show cause filed on April 10, 2013, petitioner Taralyn Accetta (hereinafter Accetta) seeks an order directing the respondent Brookdale University Medical Center (hereinafter BUMC) to show cause why it should not be ordered to provide the petitioner with a full and complete copy of her medical records pursuant to CPLR 3102(c) and 4504(c)(1).

MOTION PAPERS

Accetta's order to show cause consists of a petition and five annexed exhibits labeled A through E. Exhibit A contains a copy of a letter from Accetta's attorney to BUMC dated October 9, 2012 which requests her complete hospital records. Also included is Accetta's authorization for the release of the records. Exhibit B is a copy of a letter from BUMC to Accetta's counsel advising that the request was not in proper form. Also included is a document which states the reasons why BUMC did not comply with the request. Exhibit C is a letter from Accetta's attorney to BUMC dated November 16, 2012 which, once again requested Accetta's hospital records. Also included is Accetta's authorization for the release of the records. Exhibit D is a copy of a letter from BUMC to plaintiff's counsel titled "invalid authorization notice," advising that the request was not in proper form. Also included is a letter explaining that the initials on the authorization form did not match Accetta's name. Exhibit E is a copy of a prior order to show cause filed on February 25, 2012 which was denied by Justice Jack M. Battaglia without prejudice.

LAW AND APPLICATION

CPLR 3102(c) provides that prior to an action being commenced, "disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order." McKinney's Cons Laws of NY, Book 7B in section C3102:4 discusses pre-action disclosure requirements and states that "if a person has a cause of action against another but needs assistance from the disclosure devices before being able to sue on it, disclosure is available under CPLR 3102(c). . . As long as the potential plaintiff can demonstrate that there is a prima facie cause of action, pre-action disclosure can be invoked to determine who the defendant [*2]should be" (citing Toal v Staten Island Univ. Hosp., 300 AD2d 592 [2nd Dept 2002]). However, pre-action disclosure under CPLR 3102(c) is not available to the prospective plaintiff to determine if the plaintiff has a cause of action (Holzman v Manhattan and Bronx Surface Transit, 271 AD2d 346 [1st Dept 2000]).

In determining whether the petitioner has demonstrated a prima facie case, the evidence presented must be considered in a light most favorable to the petitioner (Id.). Here, the petition is verified by petitioner's counsel and therefore cannot be used as Accetta's affidavit pursuant to CPLR 105(u).

The petition states the following language in paragraph three. "This pre-action petition involves the petitioner, Taralyn Accetta, who received medical care and treatment at respondent's medical facility, Brookdale University Medical Center." The sole reason given for seeking Acceta' medical records is contained in paragraph four of the petition which states all follows. "In order to properly investigate the medical care and treatment the petitioner received, it is necessary that we, as petitioner's attorneys, obtain all of the respondent's medical records..."

The petitioner has not provided sufficient information regarding the nature of the potential litigation. Counsel's statements suggests that petitioner's causes of action may involve medical malpractice. In a medical malpractice action, expert medical opinion evidence is required to demonstrate merit (Id.). The petition does not include an expert medical opinion to establish a prima facie case. Therefore, the petitioner has failed to satisfy the requirements of CPLR 3102(c).

Petitioner has also cited CPLR 4504(c)(1) in support of the instant motion. CPLR 4504 outlines the physician/patient confidentiality privilege and the exceptions therefrom. CPLR 4504(a) provides that "a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. . ." A patient may waive this privilege to allow the physician to disclose certain information (see CPLR 4504[a]).

CPLR 4504(c) provides that "a physician or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under subdivision (a), except information which would tend to disgrace the memory of the decedent, either in the absence of an objection by a party to the litigation or when the privilege has been waived." CPLR 4504(c)(1) specifies that the information is required to be produced when the decedent's personal representative, or the surviving spouse, or the next of kin of the decedent waives the privilege.

The instant application is not the petitioner's first application for the same relief. Petitioner's prior motion papers did not identify the individual whose medical records were being sought. However, the prior motion utilized CPLR 4504(c)(1) to support the application, a section which applies to records sought of a deceased individual. Justice Battaglia denied the prior motion without prejudice based on the lack of evidence that the petitioner was a representative of the decedent whose records were sought.

The instant motion has attempted to address Justice Battaglia's order. The petition states in paragraph 12 that Justice Battaglia's denial was in error. Specifically it states: "Respectfully, the Court is in error as Ms. Accetta is alive and has retained this firm as her attorneys." Contrary [*3]to the petitioner's claim, the denial was proper based on the deficiencies of the petition. Furthermore, the impression that petitioner was seeking records of a decedent was attributable to petitioner's use of CPLR 4504(c)(1) in support of the request and petitioner's failure to identify the individual whose records were sought.

Curiously, the petitioner has once again used CPLR 4504(c)(1) as authority for the relief it seeks. The significant difference in the instant application is that petitioner has now made it clear for the first time that the petitioner is seeking her own records.

CPLR 4504(c)(1) provides no authority for obtaining medical records of an individual who is alive. Moreover, the petitioner cites no authority to support the notion that an exception to an evidentiary privilege can provide an affirmative legal basis for relief. The court is mindful that there may be other authority to support petitioner's request (eg. Public Health Law §§ 17 & 18(1)(g); and Boltja v Southside Hosp., 186 AD2d 774 (2d Dept 1992). However, CPLR 2214 places the burden on the movant to provide the facts and the law which supports the relief sought. It is incumbent on the movant to meet this minimal burden and not on the Court to guess at the facts and the law that the movant actually intended to use. Therefore, the Court chooses not to disregard the petitioner's inapposite use of CPLR 3102(c) and CPLR 4504(c)(1) and the motion is denied without prejudice.

The foregoing constitutes the decision and order of this court

Enter_____________________________X

J.S.C

Enter forthwith_____________________________X

J.S.C.