[*1]
Wechsler v Yun
2014 NY Slip Op 50795(U) [43 Misc 3d 1226(A)]
Decided on May 22, 2014
Supreme Court, Nassau County
Marber, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 22, 2014
Supreme Court, Nassau County


Gale Wechsler, Plaintiff,

against

Sung R. Yun and NANCY TAM, Defendants.




008910/10



Rubin & Licatesi, P.C.



Attorneys for Plaintiff



591 Stewart Avenue



Garden City, NY 11530



(516) 227-2662



Abamont & Associates



Attorneys for Defendants



200 Garden City Plaza, Suite 400



Garden City, NY 11530



(800) 486-4730


Randy Sue Marber, J.

Papers Submitted:



Notice of Motion (Mot. Seq. 02)................................x



Notice of Cross-Motion (Mot. Seq. 03)......................x



Reply Affirmation and Opposition to Cross-Motion...x



Upon the foregoing papers, the Motion (Mot. Seq. 02) brought pursuant to CPLR § 3124 (a) by the Defendants, SUNG R. YUN and NANCY TAM, (hereinafter "Defendants") seeking to compel the Plaintiff to furnish the Defendants with authorizations and the Cross-Motion (Mot. Seq. 03) brought pursuant to CPLR § 3103 by the Plaintiff, GALE WECHSLER, seeking a Protective Order denying the Defendants' request for drug dependency treatment records and medical records of prior treating Psychiatrist, Dr. Andrew Slaby, are decided as provided herein.



This action arises from a motor vehicle accident which occurred on September 30, [*2]2009. As a result of the accident the Plaintiff alleges she suffered serious personal injuries that have required multiple surgeries.



In their Motion (Mot. Seq. 02), the Defendants seek to compel the Plaintiff to comply with several items of outstanding discovery, to wit: providing authorizations for medical treatment, including her drug rehabilitation treatment records. The Defendants' counsel contends that the Defendants would be severely prejudiced if they were forced to proceed to trial without the outstanding discovery, which is claimed to be necessary for the defense of this matter. Counsel for the Defendants states that the Plaintiff's Third, Fourth and Fifth Supplemental Bills of Particulars contain allegations that the Plaintiff's injuries have "substantially prevented her from enjoying the normal fruits of activities. Plaintiff's loss of enjoyment of life has been permanently impaired, impeded and reduced as a result." As a result, the Defendants' counsel argues the Plaintiff has waived the physician-patient privilege by putting her physical or mental condition in issue and must provide the authorizations demanded.



In opposition to the Defendants' motion (Mot. Seq. 02), the Plaintiff cross-moves (Mot. Seq. 03) seeking a Protective Order pursuant to CPLR § 3103. The Plaintiff's counsel contends that the Defendants' demand for discovery of the Plaintiff's drug rehabilitation treatment records is untimely. Reasoning that "But for the Note of Issue being vacated due to continuing medical care and treatment as a result of this accident, Defendants would not be entitled to such discovery as the case was certified on June 21, 2011," Plaintiff's counsel states the Defendants waived their right to additional discovery. Plaintiff's counsel also charges that the demand is nothing more than a fishing expedition and is "irrelevant, highly prejudicial and meant to embarrass Plaintiff at the time of the trial of this action". Relying on Wojtusiak v. Elardo, 43 A.D3d 436 (2d Dept. 2007), the Plaintiff's counsel argues that the Plaintiff's drug dependency treatment records are irrelevant to any issue in the action. The Court, in Wojtusiak, determined that the defendant was not entitled to the plaintiff's drug-treatment history as her mental health was not at issue. The Plaintiff further relies on Calendar v. Mnasin, 23 AD3d 509 (2d Dept. 2005), wherein that Court ruled that the defendant was not entitled to the records of the plaintiff's treatment for drug addiction since the plaintiff did not place her mental or emotional condition at issue in the action. Lastly, the Plaintiff's counsel states the Plaintiff's claim for "loss of enjoyment of life" concerns her inability to "perform her usual and customary tasks as a result of the injuries she sustained and resulting surgeries relating to this motor vehicle accident".



In opposition to the Cross-motion, the Defendants' counsel relies on Alaten Co. v. Solil Management Corp., 181 AD2d 466 (1st Dept. 1992) to first argue that the Plaintiff's Cross-motion is untimely. CPLR § 3103, however, was altered in 1993, after the Alaten decision was rendered. CPLR § 3103 (a) provides that the court may, "at any time" make a protective order. As such, the Court does not have to find that the discovery demand is "palpably improper" in order to grant the Plaintiff's request for a protective order.



In further support of its motion and in opposition to the Plaintiff's Cross-motion, the Defendants' counsel argues that the Plaintiff's counsel reliance on the Wojtusiak and Calendar cases is misplaced. In both of those cases, the Defendants' counsel argues, the plaintiff did not assert a claim of loss of enjoyment of life. As such, the Defendants' counsel argues, the instant case can be distinguished from Wojtusiak and Calendar, in that here, the Plaintiff has placed her mental and emotional condition at issue due to the allegation that her physical injuries have caused a loss of [*3]enjoyment of life.



The Defendants' counsel relies on Azznara v. Strauss, 81 AD3d 578 (2d Dept. 2011). In Azznara, the Court ordered the plaintiff to provide authorizations for the release of his alcohol and drug abuse records where he made a claim of loss of enjoyment of life. The Defendants' counsel argues that the instant matter is analogous to Azznara.



CPLR § 3101 (a) sets forth the criterion for disclosure under the CPLR, requiring "full disclosure of all matter material and necessary in the prosecution or defense of an action." Requests for disclosure, however, may not be overbroad, burdensome, or lacking in specificity and they may not seek irrelevant information. Osowski v. AMEC Constr. Mgt., Inc., 69 AD3d 99, 106 (1st Dept. 2009). The words material and necessary are to be liberally interpreted to "require disclosure, upon request of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." Allen v. Crowell-Collier Publishing Co., 21 NY2d 403, 406-407 (1969) The test to determine if the information sought is material and necessary is one of usefulness and reason. Id.



The principle of full disclosure does not, however, give a party the right to uncontrolled and unfettered disclosure. Matters relating to disclosure lie within the broad discretion of the trial court which is in the best position to determine what is material and necessary. Buxbaum v. Castro, 82 AD3d 925 (2d Dept. 2011).



CPLR § 3101 (d) (2) provides that:



"material otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent) may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. * * * [T]he court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation."



"[A] party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue" Graziano v. Cagan, 105 AD3d 701 (2d Dept. 2013) (citing Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456—457,[citation omitted] Dillenbeck v. Hess, 73 NY2d 278; Avila v. 106 Corona Realty Corp., 300 AD2d 266). Contrary to the Plaintiff's counsel's assertion, the Plaintiff has failed to meet her burden of establishing that she did not waive the privilege (See Corbey v. Allam, 58 AD3d 667 [2d Dept. 2009] Bobrowsky v. Toyota Motor Sales U.S.A., 261 AD2d 349 [2d Dept. 1999], cert. denied 531 U.S. 829, 121 S.Ct. 80, 148 L.Ed.2d 42).



The Plaintiff's contention that her drug dependency treatment records are irrelevant as she makes no claim that her drug dependency issues have any bearing on the happening of the accident and that no claim of a relapse is made and that she did not make a claim for psychological or psychiatric injury as a result of the accident is belied by the pleadings, which affirmatively places the Plaintiff's mental condition in issue. Specifically, the Plaintiff, in her Third, Fourth and Fifth Supplemental Bills of Particulars alleges that her "injuries have substantially prevented the Plaintiff from enjoying the normal fruits of activities. Plaintiff's enjoyment of life has been permanently [*4]impaired, impeded and reduced as a result". (See Third, Fourth and Fifth Supplemental Bills of Particulars attached to the Defendants' Notice of Motion as Exhibits H, I and J) In addition, the drug dependency treatment records are material and necessary to the issue of damages, if any, recoverable for a claimed loss of enjoyment of life (See Azznara v. Strauss, supra; Amoroso v. City of New York, 66 AD3d 618 [2d Dept. 2009] Steward v. New York City Hous. Auth., 302 AD2d 449 [2d Dept. 2003]).



Accordingly, it is hereby



ORDERED, that the Motion (Mot. Seq. 02) brought by the Defendants, SUNG R. YUN and NANCY TAM, seeking to compel the Plaintiff to furnish the Defendants with authorizations for medical records is GRANTED; and it is further,



ORDERED, that the Cross-motion (Mot. Seq. 03) brought by the Plaintiff seeking a protective order is DENIED; and it is further,



ORDERED, that the Plaintiff is to furnish the Defendants all authorizations previously demanded and currently outstanding within twenty (20) days of the date a copy of this Order with Notice of Entry is served on the Plaintiff's counsel; and it is further



ORDERED, that the Defendants' counsel shall serve a copy of this Order with Notice of Entry upon the Plaintiff's counsel pursuant to CPLR § 2103 (b) (1), (2) or (3) within twenty (20) days of the date of entry of this Order.



This constitutes the decision and Order of the court.



DATED:Mineola, New York



May 22, 2014



______________________________



Hon. Randy Sue Marber, J.S.C.