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

740
CA 11-02079
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


DARLENE DONALD, PLAINTIFF-RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

DEVAN E. AHERN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KRISTEN M. BENSON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LYNN LAW FIRM, LLP, SYRACUSE (PATRICIA A. LYNN-FORD OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Donald A. Greenwood, J.), entered June 8, 2011 in a personal injury
action. The order, insofar as appealed from, denied in part the
motion of defendant to compel plaintiff to complete HIPAA compliant
authorizations and to submit to a second deposition and granted the
cross motion of plaintiff for a protective order.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted
to the extent that plaintiff is directed to submit to Supreme Court a
certified complete copy of her medical records from mental health
providers since 2000 and to submit to a second deposition, the cross
motion is denied, and the matter is remitted to Supreme Court,
Onondaga County, for further proceedings in accordance with the
following Memorandum: Plaintiff commenced this action seeking damages
for injuries she allegedly sustained when the vehicle driven by
defendant rear-ended the vehicle driven by plaintiff. After deposing
plaintiff, defendant moved to compel plaintiff to provide defendant
with Health Insurance Portability and Accountability Act ([HIPAA] 42
USC § 1320d et seq.) compliant authorizations allowing defendant to
obtain plaintiff’s medical records from psychologists, psychiatrists,
counselors, and therapists from whom plaintiff received treatment, and
to compel plaintiff to submit to a second deposition on her
psychological conditions, treatment, and related medications, and the
effect thereof on her quality of life. Plaintiff cross-moved for a
protective order to strike defendant’s request for disclosure of the
records and to strike her deposition testimony concerning her mental
health treatment. In appeal No. 1, defendant appeals from an order
denying those parts of his motion to compel plaintiff to produce HIPAA
compliant authorizations and to compel plaintiff to submit to a second
deposition with respect to any “psychological treatment,” while
permitting defendant’s attorney to continue to depose plaintiff
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                                                         CA 11-02079

concerning “any other issues” consistent with Supreme Court’s decision
inasmuch as defendant’s attorney indicated that she had discontinued
the deposition when plaintiff became “extremely upset.” By the order
in appeal No. 1, the court also granted plaintiff’s cross motion for a
protective order. After defendant filed a notice of appeal from the
order in appeal No. 1, plaintiff filed a note of issue and certificate
of readiness. Defendant moved to strike the note of issue and
certificate of readiness because, inter alia, pretrial discovery had
not been completed. In appeal No. 2, defendant appeals from an order
denying his motion.

     With respect to appeal No. 1, we agree with defendant that the
court erred in denying defendant’s motion insofar as it sought to
compel plaintiff to complete the HIPAA authorizations and erred in
granting plaintiff’s cross motion, but only to the extent that the
resulting records are to be submitted to the court for an in camera
review and appropriate redaction, as explained herein, before
defendant may receive them. “[A]lthough a plaintiff who commences a
personal injury action has waived the physician-patient privilege to
the extent that his [or her] physical or mental condition is
affirmatively placed in controversy . . ., the waiver of that
privilege does not permit discovery of information involving unrelated
illnesses and treatments” (Bozek v Derkatz, 55 AD3d 1311, 1312
[internal quotation marks omitted]; see Tirado v Koritz, 77 AD3d 1368,
1369; Tabone v Lee, 59 AD3d 1021, 1022). “The determinative factor is
whether the records sought to be discovered are material and necessary
in defense of the action . . ., or whether the records may contain
information reasonably calculated to lead to relevant evidence”
(Bozek, 55 AD3d at 1312 [internal quotation marks omitted]; see
Nichter v Erie County Med. Ctr. Corp., 93 AD3d 1337, 1338).

     Here, plaintiff affirmatively placed various aspects of her
physical condition in controversy, including pain in her upper
extremities and headaches of increasing intensity and frequency, thus
waiving any physician-patient privilege concerning records related to
those physical conditions (see Tirado, 77 AD3d at 1369; Tabone, 59
AD3d at 1022). Based on plaintiff’s deposition testimony, plaintiff’s
depression is related to those physical conditions inasmuch as
plaintiff agreed that her depression causes her stress, which in turn
increases her pain. Further, defendant is entitled to plaintiff’s
mental health records because plaintiff alleged that she has suffered
an impaired and diminished quality of life and, given plaintiff’s
preexisting depression, her impaired quality of life and inability to
enjoy the activities she enjoyed before the accident could result from
physical injuries sustained in the accident, her preexisting mental
condition or aggravation of that condition, or some combination
thereof. Therefore, because plaintiff’s depression is not an
unrelated ailment, plaintiff waived her physician-patient privilege
concerning her mental health records, and the records sought to be
discovered are material and necessary in defense of the action.

     We acknowledge, however, that there may be information in
plaintiff’s mental health records that is irrelevant to the current
action, and that there are legitimate concerns with respect to “the
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                                                         CA 11-02079

unfettered disclosure” of a plaintiff’s mental health records (see
Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 460). We thus
conclude that plaintiff must submit her mental health records from
2000 to the present to Supreme Court for an in camera review and the
redaction of any irrelevant information (see Nichter, 93 AD3d at 1338;
see generally Tirado, 77 AD3d at 1369; Tabone, 59 AD3d at 1022).

     We further agree with defendant that the court erred in denying
that part of the motion to compel a second deposition of plaintiff
regarding her mental health issues. Plaintiff’s mental health records
are a proper part of disclosure in this case, the deposition of
plaintiff on the issue of her mental health is material and necessary
to the defense, and defendant’s attorney specifically requested an
opportunity to depose plaintiff a second time on issues related to her
mental health (see CPLR 3101 [a]; Gromoll v Bertolino, 4 AD3d 759,
759-760).

     In light of our conclusion in appeal No. 1, we agree with
defendant in appeal No. 2 that the court erred in denying his motion
to strike the note of issue and certificate of readiness. A court may
strike a note of issue and certificate of readiness on motion where,
inter alia, “it appears that a material fact in the certificate of
readiness is incorrect” (22 NYCRR 202.21 [e]). Here, the certificate
of readiness stated that discovery was complete. Because we agree
with defendant that discovery was incomplete when the note of issue
and certificate of readiness were filed, “ ‘a material fact in the
certificate of readiness [was] incorrect’ ” (Suphankomut v Chi-The Yu,
66 AD3d 1360, 1360, quoting 22 NYCRR 202.21 [e]).




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
