         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
389
CA 10-00989
PRESENT: CENTRA, J.P., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


DAVID SZMANIA AND DEBORAH SZMANIA,
CLAIMANTS-APPELLANTS,

                      V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 111596.)
(APPEAL NO. 2.)


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

ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an   order of the Court of Claims (Jeremiah J.
Moriarty, III, J.),   entered August 27, 2009 in a personal injury
action. The order,    insofar as appealed from, denied in part the
motion of claimants   to compel the production of documents.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating that part of the first
ordering paragraph with respect to demand number one in claimants’
“Notice to Produce Documents and Things” dated January 14, 2008 and as
modified the order is affirmed without costs and the matter is
remitted to the Court of Claims for further proceedings in accordance
with the following Memorandum: Claimants commenced this action
seeking damages for injuries sustained by David Szmania (claimant), an
off-duty police officer, when he was assaulted by a resident of the
West Seneca Developmental Center, a facility operated by the New York
State Office of Mental Retardation and Developmental Disabilities.
The resident had fled from the facility and was in the neighborhood of
the facility at the time of the assault. In appeal No. 1, claimants
appeal from an order denying in part their motion to compel disclosure
and, in appeal No. 2, they appeal from an order also denying in part
their subsequent motion to compel disclosure.

     With respect to appeal No. 1, we conclude that the Court of
Claims properly determined that certain portions of the relevant
incident reports, as well as additional incident notification forms,
were precluded from disclosure pursuant to Education Law § 6527 (3)
and Mental Hygiene Law § 29.29. Contrary to claimants’ contention,
the court properly concluded, following an in camera review, that the
portions of the relevant incident reports and the incident
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                                                         CA 10-00989

notification forms in question were exempt from disclosure inasmuch as
they were prepared in connection with a quality assurance review
function (see generally Katherine F. v State of New York, 94 NY2d 200,
205; Klingner v Mashioff, 50 AD3d 746, 747).

     With respect to appeal No. 2, claimants contend that the court
erred in denying that part of their motion to compel defendant to
produce the “West Seneca Developmental Center File” (File), including
all medical and psychiatric records, for the resident who assaulted
claimant. Generally, claimants are “not entitled to the medical
information contained in [a resident-patient’s] clinical record absent
a showing that the privilege [pursuant to CPLR 4504] ha[s] been waived
. . ., and absent a finding that the interests of justice
significantly outweigh[ ] the need for and the right of the patient’s
confidentiality” (J.Z. v South Oaks Hosp., 67 AD3d 645, 645-646; see
generally Mental Hygiene Law § 33.13 [c]). Claimants contend that
here the resident waived any applicable privilege by pleading not
responsible by reason of mental disease or defect in the related
criminal proceeding (see generally Penal Law § 40.15; Webdale v North
Gen. Hosp., 7 Misc 3d 947, 955, affd 24 AD3d 153). We agree with that
contention only to the extent that the resident, by so pleading,
waived any privileges applicable to his psychiatric records and
documents relating to his mental condition at the time of the assault
(see § 40.15; People v Al-Kanani, 33 NY2d 260, 264-265, cert denied
417 US 916; People v Harris, 109 AD2d 351, 362-363, lv denied 66 NY2d
919; see generally People v Bloom, 193 NY 1, 8; Carter v Fantauzzo,
256 AD2d 1189, 1190). “The waiver of the . . . privilege . . . does
not permit discovery of information involving unrelated illnesses and
treatments” (Carter, 256 AD2d at 1190). Thus, an in camera review of
the File is required to determine which, if any, of the resident’s
medical records relate to the asserted affirmative defense (see
generally Sohan v Long Is. Coll. Hosp., 282 AD2d 597, 598). We
further conclude that, upon remittal for such review, notice should be
provided to the resident and/or his representative so that he may have
an opportunity to be heard on this matter. In addition, an in camera
review is required to determine whether the File contains other
information to which claimants are entitled, i.e., “information of a
nonmedical nature relating to any prior assaults or similar violent
behavior by the [resident]” (id.; see J.Z., 67 AD3d 645; Moore v St.
John’s Episcopal Hosp., 89 AD2d 618, 619), but only to the extent that
such information is not exempt from disclosure pursuant to Education
Law § 6527 (3) and Mental Hygiene Law § 29.29. Finally, we note that,
despite the resident’s waiver, disclosure of the relevant medical and
psychiatric files may not be ordered until there has been a finding
pursuant to Mental Hygiene Law § 33.13 (c) (7) “that disclosure will
not reasonably be expected to be detrimental to the [resident] . . .
or another” individual (see generally L.T. v Teva Pharms. USA, Inc.,
71 AD3d 1400, 1401). We therefore modify the order by vacating that
part of the first ordering paragraph with respect to the File, and we
remit the matter to the Court of Claims for an in camera review of the
File, following notice to the resident and/or his representative and
an opportunity to be heard on the issue of discovery of the File. The
court must then decide that part of claimants’ motion seeking
discovery of the File following such in camera review, and make a
                                 -3-                           389
                                                         CA 10-00989

finding pursuant to Mental Hygiene Law § 33.13 (c) (7), if warranted.




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
