        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

907
CA 13-00126
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


DIANCA ADAMS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

EVA I. DAUGHTERY, LISTON DAUGHTERY, KARTRINA L.
JOHNSON (ALSO KNOWN AS KARTRINA L. WILSON),
DANIEL C. ROBINSON AND JOHNSON & ROBINSON
ENTERPRISES, INC., DEFENDANTS-RESPONDENTS.


ATHARI & ASSOCIATES, LLC, UTICA (ASH A. NELLUVELY OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HISCOCK & BARCLAY, LLP, ROCHESTER (GARY H. ABELSON OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS KARTRINA L. JOHNSON (ALSO KNOWN AS KARTRINA L.
WILSON), DANIEL C. ROBINSON AND JOHNSON & ROBINSON ENTERPRISES, INC.

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (MICHAEL J. CHMIEL OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS EVA I. DAUGHTERY AND LISTON
DAUGHTERY.


     Appeal from an amended order of the Supreme Court, Monroe County
(John J. Ark, J.), entered March 28, 2013 in a personal injury action.
The amended order, inter alia, granted the motion and cross motion of
defendants-respondents to compel disclosure and denied the cross
motion of plaintiff for, inter alia, a protective order.

     It is hereby ORDERED that the amended order so appealed from is
unanimously modified on the law by denying defendants’ motion and
cross motion to the extent that they seek authorizations for the full
disclosure of the records sought and by granting plaintiff’s cross
motion to the extent that it seeks an in camera review of those
records and as modified the order is affirmed without costs, and the
matter is remitted to Supreme Court, Monroe County, for further
proceedings in accordance with the following Memorandum: Plaintiff
commenced this action seeking damages for injuries she sustained as a
result of her exposure, during her childhood, to lead-based paint.
She appeals from an order that granted the motion and cross motion of
defendants-respondents (defendants) to compel disclosure and denied
her cross motion for, inter alia, a protective order or, in the
alternative, an in camera review of the records sought. We note at
the outset that the order from which plaintiff appeals was superseded
by an amended order entered after she perfected the instant appeal.
There were no substantive changes made to the amended order and it was
entered solely to allow one of the two sets of defendants in this
                                 -2-                           907
                                                         CA 13-00126

action to file a respondents’ brief on this appeal. In the exercise
of our discretion, we treat the appeal as taken from the amended order
(see CPLR 5520 [c]; Matter of Ruggieri v Bryan, 23 AD3d 991, 991; see
also Matter of Mikia H. [Monique K.], 78 AD3d 1575, 1575, lv dismissed
in part and denied in part 16 NY3d 760).

     In view of the injuries alleged by plaintiff, we conclude that
she waived her physician-patient privilege and any related privileges
with respect to the records sought, and that those records may be
material and necessary to the defense of the action (see Donald v
Ahern, 96 AD3d 1608, 1610; Rothstein v Huh, 60 AD3d 839, 839-840).
There may be information in plaintiff’s records, however, that is
irrelevant to this action, and there are legitimate concerns with
respect to “the unfettered disclosure of sensitive and confidential
information” contained in those records (Cynthia B. v New Rochelle
Hosp. Med. Ctr., 60 NY2d 452, 460; see Donald, 96 AD3d at 1610-1611).
Thus, here, as in Dominique D. v Koerntgen (107 AD3d 1433, 1434), we
modify the order by denying defendants’ motion and cross motion to the
extent that they seek authorizations for the full disclosure of the
records sought and by granting plaintiff’s cross motion to the extent
that it seeks an in camera review of the records, and we remit the
matter to Supreme Court for such in camera review and the redaction of
any irrelevant information (see Donald, 96 AD3d at 1611; Nichter v
Erie County Med. Ctr. Corp., 93 AD3d 1337, 1338).




Entered:   October 4, 2013                      Frances E. Cafarell
                                                Clerk of the Court
