Category: CPLR § 4503

[P]laintiff commenced this second fraud action against defendants in
Clinton County, again alleging that certain purported inconsistencies
between other official documents and defendant's medical records for
the victim, which plaintiff claims were [*2]fraudulently
made, deprived him of the ability to present a viable defense at his
criminal trial. Plaintiff filed an amended notice of discovery (see
CPLR 3120) seeking limited "non-medical information" in defendants'
medical records regarding the victim, relating strictly to "time data"
for the date of the victim's death, namely "time of all calls" to
Jamaica Hospital, "time of arrival" at its emergency room and "time of
death." Plaintiff requested that all confidential and privileged
material be redacted (see CPLR 4504 [a]).

Defendants did not respond to plaintiff's discovery demand, so plaintiff moved to compel a response (see
CPLR 3124). Jamaica Hospital cross-moved to deny that relief. Supreme
Court (Dawson, J.) granted plaintiff's motion and denied Jamaica
Hospital's cross motion. Jamaica Hospital now appeals.

Jamaica Hospital has not demonstrated that res judicata applies
to this motion. Under that doctrine, a prior valid final judgment on
the merits precludes litigation between the same parties of any claim
that was or could have been raised in the prior action (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 12 [2008]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]; Kinsman v Turetsky, 21 AD3d 1246, 1246-1247 [2005], lv denied 6 NY3d 702 [2005]). Supreme Court, Queens County merely denied plaintiff's unopposed motion to compel disclosure ^[FN1] due to lack of standing, which is not a determination "on the merits" (see Landau, P.C. v LaRossa, Mitchell & Ross,
11 NY3d at 13-14 and n 3). Likewise, the record does not indicate that
there has been a "final judgment" rendered in the Queens County matter (Parker v Blauvelt Volunteer Fire Co.,
93 NY2d at 347). Thus, Jamaica Hospital has not shown that the Queens
County order precludes plaintiff's present motion to compel discovery.

The documents that plaintiff seeks, as redacted, are not
privileged and must be disclosed. Jamaica Hospital, as the party
objecting to disclosure, bore the burden of proving its assertion that
the material sought is privileged under CPLR 4504 (a) and the federal
Health Insurance Portability and Accountability Act (42 USC § 1320d et seq. [hereinafter HIPAA]; see Koump v Smith, 25 NY2d 287, 294 [1969]; see also Dillenbeck v Hess,
73 NY2d 278, 287 [1989]). The physician-patient privilege "prohibits
disclosure of any information acquired by a physician 'in attending a
patient in a professional capacity, and which was necessary to enable
[the physician] to act in that capacity'" (Dillenbeck v Hess, 73 NY2d at 284, quoting CPLR 4504 [a]; see State of New York v General Elec. Co.,
201 AD2d 802, 802-803 [1994]). The very narrow information sought by
plaintiff regarding when certain events occurred, as documented in the
victim's medical records on the date of his death was not information
necessary to the victim's medical treatment; it was merely documented
facts regarding time data that would be obvious to a layperson (see Williams v Roosevelt Hosp., 66 NY2d 391, 396 [1985]; Henry v Lewis, 102 AD2d 430, 437 [1984] [dates and times of treatment not privileged]; see also Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 [2002]; People v Elysee, 49 AD3d 33, 37-39 [2007], affd 12 NY3d 100 [2009]; Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, 113 AD2d 49, 55 [1985], affd 69 NY2d 232 [1987], cert denied 482 US 928 [1987]). Hence, the information was not privileged under state law.
[*3]

HIPAA regulates disclosure of
"protected health information," which includes "individually
identifiable health information," defined as health information that
"[i]s created or received by a health care provider . . . and [r]elates
to past, present, or future physical or mental health or condition of
an individual[,] the provision of health care to an individual [or
payment therefor]," and identifies the patient or which reasonably
could be so used (45 CFR 160.103; see 42 USC 1320d [6] [B]; Arons v Jutkowitz, 9 NY3d 393,
413 [2007]). The time data sought by plaintiff cannot be characterized
as protected health information, as it has no apparent connection to
the victim's physical condition or medical care. As Jamaica Hospital
failed to demonstrate that the circumscribed redacted time data is
privileged, Supreme Court properly denied its cross motion and granted
plaintiff's motion to compel a response to his amended notice for
discovery.

The plaintiff met his burden of proving that the subpoenaed documents were protected by the attorney-client privilege (see CPLR 3101[b], 4503[a]; Matter of Priest v Hennessy, 51
NY2d 62, 69). While a court is not bound by the conclusory
characterizations of a client or his attorney, here, there was no
reason to disregard the attorney's sworn statement regarding the nature
of the engagement of the accounting firm (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 379-380).

In any event, the plaintiff also established that the requested
documents were protected as material prepared by the accountants for
his attorneys in anticipation of litigation (see CPLR 3101[d][2]; Carrafiello v Massachusetts Mut. Life Ins. Co., 266
AD2d 117 ). Where, as here, the party seeking to prevent disclosure
makes the required showing that the documents were prepared [*2]solely
for litigation, the burden shifts to the party seeking disclosure to
establish that there is a substantial need for the materials and they
cannot be obtained elsewhere without undue hardship (see Volpicelli v Westchester County, 102 AD2d 853; Zimmerman v Nassau Hosp., 76
AD2d 921). Inasmuch as the defendant failed to show that he could not
obtain the requested documents without undue hardship, the Supreme
Court properly issued the protective order.