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

390
CA 16-01345
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.


THOMAS P. JOUSMA AND ELLENE PHUFAS-JOUSMA,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

DR. VENKATESWARA R. KOLLI AND KALEIDA HEALTH,
DOING BUSINESS AS DEGRAFF MEMORIAL HOSPITAL,
DEFENDANTS-APPELLANTS.


ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (JOHN P. DANIEU OF
COUNSEL), FOR DEFENDANT-APPELLANT DR. VENKATESWARA R. KOLLI.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (VICTOR A. OLIVERI OF
COUNSEL), FOR DEFENDANT-APPELLANT KALEIDA HEALTH, DOING BUSINESS AS
DEGRAFF MEMORIAL HOSPITAL.

FRANCIS M. LETRO, BUFFALO (CAREY C. BEYER OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeals from an amended order of the Supreme Court, Niagara
County (Ralph A. Boniello, III, J.), entered March 2, 2016. The
amended order compelled disclosure of various documents and ordered a
second deposition of defendant Dr. Venkateswara R. Kolli.

     It is hereby ORDERED that the amended order so appealed from is
unanimously reversed on the law without costs and plaintiffs’ motion
is denied.

     Memorandum: Defendants appeal from an amended order compelling
disclosure of various documents and ordering a second deposition of
defendant Dr. Venkateswara R. Kolli. At Dr. Kolli’s first deposition,
his attorney directed him not to answer certain questions relating to
alleged prior instances of malpractice on his part. Plaintiffs
thereafter moved for disclosure of Dr. Kolli’s credentialing and
personnel files, held by defendant Kaleida Health, doing business as
DeGraff Memorial Hospital, and for leave to conduct a second
deposition of Dr. Kolli with regard to the information contained in
those files. Supreme Court granted plaintiffs’ motion over
defendants’ objections that the documents are privileged. We now
reverse.

     Concerning the discoverability of Dr. Kolli’s credentialing file,
we note that such files “fall squarely within the materials that are
made confidential by Education Law § 6527 (3) and article 28 of the
                                 -2-                           390
                                                         CA 16-01345

Public Health Law” (Logue v Velez, 92 NY2d 13, 18; see Lamacchia v
Schwartz, 94 AD3d 712, 714; Scinta v Van Coevering, 284 AD2d 1000,
1001-1002). That privilege shields from disclosure “ ‘the proceedings
[and] the records relating to performance of a medical or a quality
assurance review function or participation in a medical . . .
malpractice prevention program’ ” (Logue, 92 NY2d at 16-17). Here,
defendants established that the credentialing file was “generated in
connection with a quality assurance review function pursuant to
Education Law § 6527 (3) or a malpractice prevention program pursuant
to [article 28 of the] Public Health Law” (Matter of Coniber v United
Mem. Med. Ctr., 81 AD3d 1329, 1330 [internal quotation marks
omitted]). We therefore conclude that the credentialing file is
privileged and that the court improperly ordered defendants to
disclose it (see id.).

     Although there is an exception to the privilege, the exception is
limited to those statements made by a doctor to his or her employer-
hospital concerning the subject matter of a malpractice action and
pursuant to the hospital’s quality-control inquiry into the incident
underlying that action (see Logue, 92 NY2d at 18; Bryant v Bui, 265
AD2d 848, 849; Swartzenberg v Trivedi, 189 AD2d 151, 152-154, appeal
dismissed 82 NY2d 749). Contrary to plaintiffs’ contention, that
exception does not apply here because the injury underlying this
action was never the subject of such an inquiry. Byork v Carmer (109
AD2d 1087, 1088), relied upon by plaintiffs, is distinguishable. In
that case, plaintiff sought to question a hospital employee about the
hospital’s knowledge of prior alleged incidents of malpractice by a
particular doctor. We rejected the defendant hospital’s invocation of
the privilege accorded by Education Law § 6527 (3) inasmuch as
“information regarding [the hospital’s] knowledge of alleged prior
incidents of negligence by [the doctor]” does not fall under that
privilege (Byork, 109 AD2d at 1088). Here, in contrast, plaintiffs do
not seek to question Dr. Kolli merely about “information”; they seek
access to his entire credentialing file, and that file is privileged
(see § 6527 [3]).

     Concerning the discoverability of Dr. Kolli’s personnel file, we
conclude that plaintiffs’ general request for that entire file is
overly broad (see Haga v Pyke, 19 AD3d 1053, 1055; Conway v Bayley
Seton Hosp., 104 AD2d 1018, 1019-1020), and we therefore deny that
request in its entirety. We thus have no occasion to decide whether
any privilege might apply to specific documents in the personnel file
(see generally Conway, 104 AD2d at 1020).

     In light of our determination to reverse the amended order
compelling disclosure of the above documents, a second deposition of
Dr. Kolli to explore the issues raised in the documents is
unneccessary. We have reviewed defendants’ remaining contentions and
conclude that they are without merit.


Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
