| Chardavoyne v Cohen |
| 2008 NY Slip Op 08694 [56 AD3d 508] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Rashmae Chardavoyne, Appellant, v Jon R. Cohen et al.,Respondents. Long Island Jewish Medical Center et al., NonpartyRespondents. |
—[*1] Garfunkel, Wild & Travis, P.C., Great Neck, N.Y. (Leonard M. Rosenberg and James M.Ingoglia of counsel), for defendants-respondents.
In an action, inter alia, to recover damages for tortious interference with contract, the plaintiffappeals from an order of the Supreme Court, Nassau County (McCormack, J.), dated August 20,2007, which granted the defendants' motion to seal the record and for a protective order anddenied her cross motion to compel the defendants and certain nonparties to produce documents,answer interrogatories, and submit to depositions.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the motion which was for a protective order with respect to the plaintiff's noticefor discovery and inspection, and (2) by deleting the provision thereof denying that branch of thecross motion which was to direct the defendants and nonparties Long Island Jewish MedicalCenter and North Shore-Long Island Jewish Health System to respond to the plaintiff's notice fordiscovery and inspection; as so modified, the order is affirmed, without costs or disbursements,and the matter is remitted to the Supreme Court, Nassau County, for an in camera inspection ofthe documents possessed by the defendants and nonparties Long Island Jewish Medical Centerand North Shore-Long Island Jewish Health System which are responsive to the plaintiff's noticefor discovery and inspection and thereafter for a new determination of that branch of the motionwhich was for a protective order with respect to the plaintiff's notice for discovery and inspectionand that branch of the cross motion which was to direct the defendants and the nonparties LongIsland Jewish Medical Center and North Shore-Long Island Jewish Health System to respond toher notice for discovery and inspection in accordance herewith; and it is further,[*2]
Ordered that the time for the defendants and nonpartiesLong Island Jewish Medical Center and North Shore-Long Island Jewish Health System toproduce the documents for an in camera inspection before the Supreme Court, Nassau County, iswithin 30 days after service upon them of a copy of this decision and order.
The Supreme Court correctly determined that, pursuant to Education Law § 6527 (3),the defendants and the subpoenaed nonparty witnesses are immune from submitting todepositions in this case, since all were participants in a medical peer-review process conductedby nonparty Long Island Jewish Medical Center (hereinafter LIJMC) (see vanBergen v LongBeach Med. Ctr., 277 AD2d 374 [2000]). However, the court erred in issuing a blanketdenial of the plaintiff's document requests based on the confidentiality privileges accordedrecords of the medical peer-review process under Education Law § 6527 and Public HealthLaw § 2805-m. Although the Supreme Court properly determined that the defendants andnonparties LIJMC and North Shore-Long Island Jewish Health System established, prima facie,that the documents sought were prepared in accordance with the relevant statutes and as part ofLIJMC's peer-review process (seeKivlehan v Waltner, 36 AD3d 597, 598 [2007]; Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 46 [2004]), it improperlyrejected the plaintiff's assertions that the documents sought were not legitimately generated aspart of the peer-review process and, therefore, were not entitled to the statutory privilege and, inaddition, that they are material and necessary to the prosecution of her action (see Seaman v Wyckoff Hgts. Med. Ctr.,Inc., 25 AD3d 596, 597 [2006]). The Supreme Court should have conducted an incamera inspection of the documents responsive to the plaintiff's request to enable it to determinewhich of the documents, or portions thereof, if any, are entitled to the statutory privileges (seeSpectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 378 [1991]; Ross v Northern Westchester Hosp.Assn., 43 AD3d 1135 [2007]; Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 47-48 [2004]) and,furthermore, whether they are "material and necessary" to the prosecution of this action underCPLR 3101 (a). Accordingly, we remit the matter for an in camera inspection and thereafter anew determination of that branch of the motion which was for a protective order with respect tothe plaintiff's notice for discovery and inspection and that branch of the cross motion which wasto direct the defendants and the nonparties LIJMC and North Shore-Long Island Jewish HealthSystem to respond to her notice for discovery and inspection.
We decline the defendants' request to impose a sanction pursuant 22 NYCRR 130-1.1 (c) (1)against the plaintiff as the appeal is not frivolous as defined therein (see Ain v Glazer,216 AD2d 428 [1995]; Matter of Kellner, 215 AD2d 560 [1995]).
The plaintiff's remaining contentions are without merit. Fisher, J.P., Dillon, McCarthy andBelen, JJ., concur.