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

599
CA 13-01926
PRESENT:   SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ.


FAREEDAH A. BARNES, PLAINTIFF-APPELLANT,

                     V                             MEMORANDUM AND ORDER

DANIEL S. HABUDA, INDIVIDUALLY AND DOING
BUSINESS AS DAN’S COLLISION,
DEFENDANT-RESPONDENT.
(APPEAL NO. 2.)


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

HISCOCK & BARCLAY, LLP, ROCHESTER (SANJEEV DEVABHAKTHUNI OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered June 10, 2013. The order adjourned trial
until plaintiff discloses the records of Jeff Reinhardt, M.D., or
provides a copy of those records to Supreme Court for in camera
review, or there is a determination of the appeal taken by plaintiff
from an order entered April 30, 2013.

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

     Memorandum: In this personal injury action arising from a motor
vehicle accident, plaintiff appeals from two orders relating to the
release of certain of her medical records. The medical records in
question are those of a physician whom plaintiff asserts is her
gynecologist (hereafter, physician). By the order in appeal No. 1,
Supreme Court ordered plaintiff, inter alia, to “produce duly executed
medical authorizations permitting defendant to obtain records of and
speak with” the physician. When plaintiff failed to comply with that
provision of the order, the court, upon defendant’s motion to strike
plaintiff’s pleadings, issued the order in appeal No. 2, affording
plaintiff the additional option of providing the physician’s records
to the court for in camera review.

     We note at the outset that plaintiff’s appeal from the order in
appeal No. 1 must be dismissed because that order was superseded by
the order in appeal No. 2 in relevant part, i.e., the order in appeal
No. 2 afforded plaintiff the option of either providing the medical
authorizations directly to defendant or providing the records to the
court for in camera review (see generally Loafin' Tree Rest. v Pardi
                                 -2-                           599
                                                         CA 13-01926

[appeal No. 1], 162 AD2d 985, 985).

     With respect to the merits of appeal No. 2, it is well settled
that the trial court “ ‘is vested with broad discretion to control
discovery and that the court’s determination of discovery issues
should be disturbed only upon a showing of clear abuse of
discretion’ ” (Eaton v Hungerford, 79 AD3d 1627, 1628). It is also
well settled that, “ ‘[i]n bringing the action, plaintiff waive[s] the
physician[-]patient privilege only with respect to the physical and
mental conditions affirmatively placed in controversy’ ” (Tirado v
Koritz, 77 AD3d 1368, 1369).   “ ‘The waiver of the physician-patient
privilege made by a party who affirmatively asserts a physical
condition in its pleading does not permit discovery of information
involving unrelated illnesses and treatments’ ” (id.; see Donald v
Ahern, 96 AD3d 1608, 1610).

     Here, we conclude that the court, in its superseding order,
properly afforded plaintiff the option of providing the records to the
court for an in camera review. If, as plaintiff asserts, the
physician’s medical records contain no information regarding the
injuries she allegedly sustained as a result of the subject motor
vehicle accident, then the records are irrelevant to this action and
should not be disclosed to defendant. Alternatively, the court may
redact the records to include only information relevant to this
action.




Entered: June 20, 2014                          Frances E. Cafarell
                                                Clerk of the Court
