         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
143
CA 12-01440
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


LINDA L. ROBINSON, INDIVIDUALLY AND AS SPECIAL
EDUCATION TEACHER, ORLEANS MEN’S CORRECTIONAL
FACILITY, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, ET AL., DEFENDANTS,
AND PATRICIA TOWNSEND, INDIVIDUALLY AND AS
ACADEMIC EDUCATION SUPERVISOR, ORLEANS MEN’S
CORRECTIONAL FACILITY, DEFENDANT-RESPONDENT.


EMMELYN LOGAN-BALDWIN, ROCHESTER, FOR PLAINTIFF-APPELLANT.

CHRISTINA A. AGOLA, PLLC, ROCHESTER (STEVEN E. LAPRADE OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (William
P. Polito, J.), entered October 28, 2011. The order denied the motion
of plaintiff to compel the production of the medical records of
defendant Patricia Townsend.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action alleging, inter
alia, that, during the course of her employment as a teacher at
defendant Orleans Men’s Correctional Facility, she was subjected to
unlawful discrimination based upon sex, age and disability, and to
retaliation for complaining about such discrimination. Patricia
Townsend (defendant) was plaintiff’s supervisor at the correctional
facility. We conclude that Supreme Court properly denied plaintiff’s
motion seeking, inter alia, to compel production of defendant’s
medical records. Even assuming, arguendo, that defendant waived the
physician-patient privilege with respect to those records by
disclosing them in an action commenced by defendant in federal court
(see Scinta v Van Coevering, 284 AD2d 1000, 1001), we conclude that
plaintiff failed to meet her initial burden of making an evidentiary
showing that defendant’s medical condition is “in controversy” in this
action (CPLR 3121 [a]; see Dillenbeck v Hess, 73 NY2d 278, 287-288;
Scinta, 284 AD2d at 1001). The fact that defendant affirmatively
placed her medical condition in controversy in the related action she
commenced in federal court does not relieve plaintiff of her initial
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                                             CA 12-01440

burden herein.




Entered:   February 8, 2013         Frances E. Cafarell
                                    Clerk of the Court
