| Klingner v Mashioff |
| 2008 NY Slip Op 03176 [50 AD3d 746] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Myrna Klingner, Appellant, v Robert Mashioff et al.,Defendants, and Elliot Paul et al., Respondents. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone of counsel;Deirdre E. Tracey on the brief), for respondents Elliot Paul, Rafael Barreira-Sweeney, ArthurDavid M. Smith, and Long Island Jewish Medical Center.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc.,the plaintiff appeals, as limited by her notices of appeal and brief, (1) from so much of an orderof the Supreme Court, Queens County (Grays, J.), dated January 22, 2007, as granted the crossmotion of the defendants Elliot Paul, Rafael Barreira-Sweeney, Arthur David M. Smith, andLong Island Jewish Medical Center for a protective order to the extent of directing them tosubmit to the court certain documents for in camera inspection, and (2) from so much of an orderof the same court dated May 21, 2007, as, upon in camera inspection of those documents, grantedthe cross motion for a protective order.
Ordered that the appeal from the order dated January 22, 2007 is dismissed, as no appeal liesfrom an order that does not decide a motion made on notice (see CPLR 5701 [a] [2]), andon the further ground that that order was superseded by the order dated May 21, 2007; and it isfurther,
Ordered that the order dated May 21, 2007 is modified, on the law, by deleting the provisionthereof granting the branch of the cross motion which was for a protective order with respect tothe first document listed on the privilege log of the defendant Long Island Jewish Medical Centeras to the statements therein made by several of the individual defendants regarding the subject[*2]matter of this action and substituting therefor a provisiondenying that branch of the cross motion; as so modified, the order dated May 21, 2007 isaffirmed insofar as appealed from, without costs or disbursements, and the time for the defendantLong Island Jewish Medical Center to serve on the plaintiff the first document listed on itsprivilege log with the confidential information redacted shall be within 30 days after service uponit of a copy of this decision and order.
The Supreme Court properly directed the defendant Long Island Jewish Medical Center(hereinafter the Hospital) to submit to the court the documents set forth in the Hospital's privilegelog for in camera inspection in order to assist the court in determining whether the documents infact are privileged under Education Law § 6527 (3) and Public Health Law §2805-m (see Ross v NorthernWestchester Hosp. Assn., 43 AD3d 1135, 1136 [2007]; Spradley v Pergament HomeCtrs., 261 AD2d 391, 392 [1999]).
After conducting an in camera inspection of the documents, the Supreme Court properlyconcluded that the documents are privileged. Upon this Court's review of the documents, it isclear that each was prepared in connection with a quality assurance review function and/or amalpractice prevention program of the Hospital pursuant to Public Health Law § 2805-j,and/or as part of the Hospital's required incident reporting to the Department of Health pursuantto Public Health Law § 2805-l. Thus, the documents are exempt from disclosureunder Education Law § 6527 (3) and Public Health Law § 2805-m (see Logue vVelez, 92 NY2d 13, 16-18 [1998]).
However, the first document listed on the Hospital's privilege log, minutes of a departmentalmortality and morbidity meeting convened approximately two weeks after the death of theplaintiff's decedent, contained, among other things, statements by several of the individualdefendants herein regarding the subject matter of this action. Those statements are not exemptfrom disclosure by Education Law § 6527 (3) or Public Health Law § 2805-m(see Logue v Velez, 92 NY2d at 18; Santero v Kotwal, 4 AD3d 464, 465 [2004]; De Paolo vWisoff, 94 AD2d 694, 694-695 [1983]; Carroll v St. Luke's Hosp. of Newburgh, 91AD2d 674, 675 [1982]). Thus, the Hospital must redact the privileged information contained inthe first document listed in the Hospital's privilege log and produce the redacted document to theplaintiff.
The plaintiff's remaining contentions are without merit. Fisher, J.P., Dillon, McCarthy andBelen, JJ., concur.