                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 25, 2016                     521066
________________________________

MARY BELLAMY et al.,
                    Appellants,
      v                                       MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   January 8, 2016

Before:   Peters, P.J., Garry, Egan Jr., Devine and Clark, JJ.

                               __________


      Scagnelli Law Firm, PC, Albany (Peter J. Scagnelli of
counsel), for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondent.

                               __________


Devine, J.

      Appeal from an order of the Court of Claims (DeBow, J.),
entered July 16, 2014, which partially denied claimants' motion
to, among other things, compel disclosure of certain records.

      On September 19, 2009, claimant Mary Bellamy was being
treated at the Capital District Psychiatric Center, a facility
operated by the State Office of Mental Health, when she was
assaulted by another patient. Bellamy and, derivatively, her
husband commenced this action to recover for the injuries
sustained in the attack. In short order, the parties became
embroiled in a dispute regarding claimants' efforts to obtain
discovery related to the assailant and his medical history, as
well as the identity of other patients.   As is relevant here, in
2011, the Court of Claims found "that the interests of justice
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would significantly outweigh the . . . need for confidentiality"
with regard to certain documents and directed that they be turned
over to claimants (see Mental Hygiene Law § 33.13 [c] [1]).

      Claimants thereafter deposed Pamela Dolacky, who is
employed at the facility and prepared large portions of an
incident report that was disclosed to them in redacted form.
After learning that Dolacky had relied upon various documents in
compiling the report, claimants requested that those documents be
provided. Counsel for defendant advised that it was unlikely
that the documents would be turned over and, moreover, directed
Dolacky not to answer certain questions regarding the assailant
and the degree to which defendant was aware of his prior history.
Claimants then moved for an order compelling disclosure of the
documents and directing Dolacky to answer the questions. The
Court of Claims, after reviewing the documents in camera, granted
the motion to the extent of compelling Dolacky to answer
questions related to whether defendant had notice of the threat
posed by the assailant and directing defendant to disclose one
page of a redacted document revealing that defendant was aware of
threats made by the assailant. Claimants now appeal.

      We affirm. In cases such as the one before us,
"[i]nformation concerning medical diagnosis and treatment is
privileged and may not be disclosed absent a showing that a
compelling interest overrides the privilege, or that the
interests of justice significantly outweigh the need for and the
right of a mentally disabled patient to confidentiality"
(Exelbert v State of New York, 140 AD2d 665, 665 [1988]; see CPLR
4504; Mental Hygiene Law § 33.13 [c] [1]; [e]; J.Z. v South Oaks
Hosp., 67 AD3d 645, 645-646 [2009]; Sohan v Long Is. Coll. Hosp.,
282 AD2d 597, 598 [2001]). Here, many of the withheld documents
have already been disclosed to claimants in redacted form, and
our in camera review confirms that claimants have obtained the
relevant "information of a nonmedical nature relating to any
prior assaults or similar violent behavior" contained in them
(J.Z. v South Oaks Hosp., 67 AD3d at 646; see Mayer v Albany Med.
Ctr. Hosp., 37 AD2d 1011, 1011 [1971]). While there are
additional references in the withheld portions of the documents
regarding the reasons why the assailant attacked Bellamy, the
interests of justice do not significantly outweigh his right to
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have that privileged diagnostic information remain confidential
(see Exelbert v State of New York, 140 AD2d at 665; Matter of
Ashford v Brunswick Psychiatric Ctr., 90 AD2d 848, 848 [1982];
Homere v State of New York, 41 AD2d 797, 797 [1973]).

      Contrary to claimants' additional contention, the Court of
Claims properly limited their ability to make further inquiries
of Dolacky to the issue of whether defendant was or should have
been on notice of the assailant's propensity for assaultive
behavior. Claimants are not entitled to inquire into diagnostic
information but, as set forth above, may ask questions
"pertaining to prior assaults or attempted assaults by the
patient, including the time and place and surrounding
circumstances, together with the date the information came within
the knowledge of defendant" (Mayer v Albany Med. Ctr. Hosp., 37
AD2d at 1011).

     Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
