| Rossi v Budget Rent A Car/Budget Car & Truck Rental |
| 2008 NY Slip Op 02701 [49 AD3d 1088] |
| March 27, 2008 |
| Appellate Division, Third Department |
| Josephine T. Rossi, Appellant, v Budget Rent A Car/Budget Carand Truck Rental, Respondent, et al., Defendants. |
—[*1] Friedman, Hirschen & Miller, L.L.P., Albany (Lynn Knapp Blake of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (Stein, J.), entered July 19, 2006 inAlbany County, which, among other things, granted the motion of defendant Budget Rent ACar/Budget Car and Truck Rental to strike the complaint.
Plaintiff, proceeding pro se, commenced this action in January 2001 seeking damages for thepersonal injuries she allegedly sustained in a 1997 motor vehicle accident. Defendant BudgetRent A Car/Budget Car and Truck Rental (hereinafter defendant) answered and served discoverydemands. Plaintiff did not respond to those demands or to defendant's four follow-up lettersrequesting disclosure. In 2005, defendant filed a request for judicial intervention and, at itsrequest, Supreme Court directed plaintiff to respond to the original discovery demands byJanuary 31, 2006. Although the court granted plaintiff an extension of time, plaintiff onlypartially responded. By an order issued on May 11, 2006, Supreme Court directed plaintiff tofully respond to all demands by May 31, 2006. Although plaintiff served some responses by thatdeadline, they were again incomplete and defendant moved to strike the complaint pursuant toCPLR 3126. Finding that plaintiff had willfully disregarded its prior orders and deliberatelyfailed to disclose, among other things, her medical records, Supreme Court granted defendant'smotion. Plaintiff appeals.[*2]
Where, as here, a party has placed his or her medicalcondition in issue, the physician/patient privilege and other privacy protections are deemedwaived (see CPLR 3121 [a]; Appler v Riverview Obstetrics & Gynecology, P.C., 9 AD3d 577,579 [2004]; Coddington v Lisk, 249 AD2d 817, 818 [1998]), and this waiver extends tothe furnishing of medical authorizations that comply with the Health Insurance Portability andAccountability Act of 1996 (see Poser vVarnovitsky, 46 AD3d 1295, 1296 [2007]). In a well-reasoned decision, Supreme Courtfound that plaintiff failed to provide authorizations and allow access to her medical recordswhich the court had ordered to be produced by reasonable deadlines. Since the record is clear thatplaintiff repeatedly disobeyed court orders, evaded her disclosure obligations and frustrated thedisclosure process, Supreme Court acted within its discretion in dismissing her claim (seeCPLR 3126 [3]; Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Du Valle v Swan Lake Resort Hotel,LLC, 26 AD3d 616, 618 [2006]; Appler v Riverview Obstetrics & Gynecology,P.C., 9 AD3d at 578).
We have examined plaintiff's remaining contentions, including her claim that Supreme Courtshould have granted her a protective order guarding the confidentiality of her medical records,and find them to be either unpreserved or lacking in merit.
Peters, J.P., Carpinello, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.