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

548
CA 11-02378
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


PENNY BOYEA, PLAINTIFF-RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

JAMES J. BENZ, III, FEDEX GROUND PACKAGE
SYSTEM, INC., DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.


BURDEN, GULISANO & HICKEY, LLC, BUFFALO (SARAH HANSEN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County (Ralph
A. Boniello, III, J.), entered March 2, 2011 in a personal injury
action. The order denied in part the motion of defendants James J.
Benz, III and FedEx Ground Package System, Inc. to compel plaintiff to
provide authorizations for the release of certain records.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion
seeking all records relating to plaintiff’s pre-accident applications
for Social Security Disability benefits and directing plaintiff to
submit those records to Supreme Court, and as modified the order is
affirmed without costs, and the matter is remitted to Supreme Court,
Niagara County, for further proceedings in accordance with the
following Memorandum: Plaintiff commenced this action seeking damages
for injuries she sustained when the vehicle in which she was a
passenger was struck by a vehicle operated by defendant James J. Benz,
III and leased by defendant FedEx Ground Package System, Inc. (FedEx).
Plaintiff alleged that, as a result of the accident, she sustained
permanent injuries to, inter alia, her neck, back, shoulders, arms,
legs, buttocks and chest. In her bill of particulars, plaintiff
further alleged that her injuries included headaches, dizziness,
lightheadedness, heart palpitations, chest pain, anxiety, lack of
concentration, vivid nightmares, excessive nervousness while in a
motor vehicle, “emotional upset and shock to the nerves and nervous
system,” emotional anguish and suffering, limited ability to perform
normal daily functions and social activities, “inability and limited
ability to engage in life’s enjoyments and loss of employment and
career.” Plaintiff sought damages for, inter alia, “her inability to
lead a normal life, permanency, pain and suffering[ and] future lost
earnings.”
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                                                         CA 11-02378

     Plaintiff provided authorizations for defendants to obtain her
medical records, but those authorizations were limited to
post-accident treatment of her neck and back. Benz and FedEx
(collectively, defendants) moved to compel plaintiff to provide
authorizations for post-accident medical records relating to other
treatment, as well as pre-accident medical records. In response to
defendants’ motion, plaintiff agreed to provide defendants with
authorizations permitting them to obtain her pre-accident medical
records “for the body parts at issue,” i.e., her “neck, back,
shoulders, arms, legs, buttocks, headaches and chest.” During the
course of discovery, it became apparent that plaintiff suffered from a
preexisting mental illness. In particular, a psychotherapist’s notes
from approximately two years prior to the accident indicate that
plaintiff had not worked in two years and that she was applying for
Social Security Disability (SSD) benefits. Defendants thus sought
plaintiff’s authorization for records from the Social Security
Administration concerning any prior applications for SSD benefits.

     At oral argument of the motion, plaintiff withdrew her claim for
emotional distress as a result of the accident. Supreme Court granted
the motion in part. The court, inter alia, ordered plaintiff to
authorize the release of all pre-accident medical records relating to
her “neck, back, shoulders, arms, legs, buttocks, headaches and
chest,” but it denied that part of defendants’ motion seeking to
compel plaintiff to authorize the release of records relating to any
pre-accident applications for SSD benefits. The court, however,
ordered plaintiff to provide defendants with the administrative
determinations of all pre-accident applications for SSD benefits, and
it ordered that all records relating to plaintiff’s post-accident
applications for SSD benefits be submitted to the court for in camera
review.

     We agree with defendants that the court abused its discretion in
denying that part of their motion seeking to compel the disclosure of
all records relating to plaintiff’s pre-accident applications for SSD
benefits. “The determinative factor is whether the records sought to
be discovered are material and necessary in defense of the action”
(Bozek v Derkatz, 55 AD3d 1311, 1312 [internal quotation marks
omitted]; see CPLR 3101 [a]). Although plaintiff is no longer
asserting a separate claim for emotional distress as a result of the
accident, many of her broad allegations of injury, including her
alleged limited ability to perform normal daily functions and social
activities, as well as her alleged “inability and limited ability to
engage in life’s enjoyments and loss of employment and career,” could
have resulted from physical injuries sustained in the accident, her
preexisting mental condition or some combination thereof (see Tirado v
Koritz, 77 AD3d 1368, 1370; see generally Geraci v National Fuel Gas
Distrib. Corp., 255 AD2d 945, 946; Kenyon v Caruso Dev. Co., 167 AD2d
966, 966-967). Further, plaintiff’s previous allegation that she was
unable to work may be relevant to her current claim of “loss of
employment and career” (see generally Kenyon, 167 AD2d at 967).
Finally, plaintiff’s preexisting mental condition may be relevant
insofar as she seeks damages for, inter alia, “her inability to lead a
normal life, permanency, pain and suffering[ and] future lost
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                                                         CA 11-02378

earnings” (see Vanalst v City of New York, 276 AD2d 789; Geraci, 255
AD2d at 946).

     We therefore modify the order by granting that part of
defendants’ motion seeking all records relating to plaintiff’s pre-
accident applications for SSD benefits and directing plaintiff to
submit those records to the court, and we remit the matter to Supreme
Court for an in camera review of those records to determine whether
they are material and related to any physical or mental condition
placed in issue by plaintiff (see Goetchius v Spavento, 84 AD3d 1712,
1713; Tirado, 77 AD3d at 1370; Tabone v Lee, 59 AD3d 1021, 1022-1023).




Entered:   June 15, 2012                       Frances E. Cafarell
                                               Clerk of the Court
