| Ross v Northern Westchester Hosp. Assn. |
| 2007 NY Slip Op 06972 [43 AD3d 1135] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Jacqueline Schneer Ross, Appellant, v NorthernWestchester Hospital Association, Doing Business as Northern Westchester Hospital,Respondent. |
—[*1] Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), forrespondent.
In an action to recover damages for medical malpractice and negligence, the plaintiff appeals,as limited by her brief, from so much of an order of the Supreme Court, Westchester County(Colabella, J.), entered December 13, 2006, as denied that branch of her motion which was, ineffect, to compel the defendant to provide certain disclosure.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the branchof the motion which was, in effect, to compel the defendant to provide certain disclosure isgranted to the extent that the defendant is directed to provide the requested documents subject toin camera review of the defendant's claims of privilege, and the matter is remitted to the SupremeCourt, Westchester County, for an in camera inspection of the requested documents.
The instant case arises out of an incident wherein the plaintiff's then 85-year-old decedentallegedly was injured when she fell out of a hospital bed while she was a patient in thedefendant's care. During the course of discovery proceedings, the plaintiff sought the productionof, among other items, all reports pertaining to similar incidents that had occurred during thethree-year period prior to the accident. The defendant claimed that the requested material wasprivileged under Education Law § 6527 (3) and Public Health Law § 2805-l.The Supreme Court denied the plaintiff's motion which, in effect, sought to compel the defendantto comply with her discovery [*2]demands.
Pursuant to Education Law § 6527 (3), certain documents generated in connection withthe "performance of a medical or a quality assurance review function," or which are "required bythe department of health pursuant to section twenty-eight hundred five-l," are generally notdiscoverable (see Marte v BrooklynHosp. Ctr., 9 AD3d 41, 42 [2004]). However, the defendant, as the party seeking toinvoke the privilege, had the burden of demonstrating that the documents sought were preparedin accordance with the relevant statutes (see Marte v Brooklyn Hosp. Ctr., 9 AD3d at 46).Here, the defendant merely asserted that a privilege applied to the requested documents withoutmaking any showing as to why the privilege attached.
Since it is impossible upon this record to ascertain what documents are in the defendant'spossession, and to determine the nature of those documents, we remit the matter to the SupremeCourt, Westchester County, to determine, after an in camera review, which of the documents orparts thereof, if any, are protected from disclosure by the statutory privileges (see NationwideIns. Co. v Crisano, 286 AD2d 670, 671 [2001]; Spradley v Pergament Home Ctrs.,261 AD2d 391, 392 [1999]; cf.Santero v Kotwal, 4 AD3d 464, 465 [2004]; Bush v Wright, 222 AD2d 546, 547[1995]; Lakshmanan v North Shore Univ. Hosp., 202 AD2d 398, 399 [1994]). Crane,J.P., Ritter, Fisher, Covello and Dickerson, JJ., concur.