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

381
CA 14-00172
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


BRENDA READING AND JAMES KRANZ,
PLAINTIFFS-RESPONDENTS,

                    V                                MEMORANDUM AND ORDER

ANTHONY FABIANO, M.D. AND KALEIDA HEALTH,
DOING BUSINESS AS MILLARD FILLMORE GATES HOSPITAL,
DEFENDANTS-APPELLANTS.
(APPEAL NO. 2.)


DAMON MOREY LLP, BUFFALO (AMY ARCHER FLAHERTY OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

BROWN CHIARI LLP, LANCASTER (MICHAEL R. DRUMM OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered September 18, 2013. The order granted the motion
of defendants for leave to reargue their prior motion to compel
certain discovery and, upon reargument, adhered to its prior decision.

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

     Memorandum: Plaintiffs commenced this medical malpractice action
seeking damages for injuries sustained by Brenda Reading (plaintiff)
during a surgical procedure for the removal of a tumor on her
pituitary gland. Plaintiffs alleged that defendant Anthony Fabiano,
M.D. was negligent in the application of a skin preparation solution
that came into contact with plaintiff’s eyes during the surgery,
resulting in, inter alia, damage to her corneas. By the order in
appeal No. 2, Supreme Court granted defendants’ motion for leave to
reargue their prior motion to compel certain discovery and, upon
reargument, adhered to its prior decision directing the disclosure of
redacted portions of certain medical records. The court attached as
“Exhibit A” to the order in appeal No. 2 an “amended memorandum
decision and order” deleting the phrase “nor is there any claim for
loss of enjoyment of life” from the original order. We dismiss the
appeal from the “amended memorandum decision and order” in appeal No.
3, which did not effect a “material or substantial change” (Matter of
Kolasz v Levitt, 63 AD3d 777, 779).

     We affirm the order in appeal No. 2. “In bringing the action,
plaintiff waived the physician/patient privilege only with respect to
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                                                        CA 14-00172

the physical and mental conditions affirmatively placed in
controversy” (Mayer v Cusyck, 284 AD2d 937, 938). Indeed, that waiver
“ ‘does not permit wholesale discovery of information regarding
[plaintiff’s] physical and mental condition’ ” (Carter v Fantauzzo,
256 AD2d 1189, 1190). Contrary to defendants’ contention, the
allegations in the bill of particulars that plaintiff sustained
“serious and permanent injuries, including: toxic keratitis;
bilateral corneal abrasions; severe bilateral photophobia; impaired
vision; decrease in vision; need for corneal transplants; loss of
enjoyment of life; disability; and pain and suffering” “do not
constitute such ‘broad allegations of injury’ that they place
plaintiff’s entire medical history in controversy” (Tabone v Lee, 59
AD3d 1021, 1022; cf. Geraci v National Fuel Gas Distrib. Corp., 255
AD2d 945, 946). The court properly conducted an in camera review to
redact irrelevant information (see generally Nichter v Erie County
Med. Ctr. Corp., 93 AD3d 1337, 1338), and properly limited disclosure
to the “conditions affirmatively placed in controversy” (Mayer, 284
AD2d at 938).




Entered:   March 27, 2015                      Frances E. Cafarell
                                               Clerk of the Court
