| Mehulic v New York Downtown Hosp. |
| 2014 NY Slip Op 00575 [113 AD3d 567] |
| January 30, 2014 |
| Appellate Division, First Department |
| Suarna Mehulic, Appellant, v New YorkDowntown Hospital, Respondent. |
—[*1] Epstein Becker & Green, P.C., New York (Robert D. Goldstein of counsel), forrespondent.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered June 28,2013, which denied plaintiff's motion to vacate a confidentiality agreement, unanimouslyaffirmed, without costs. Orders, same court and Justice, entered May 23, 2012, whichgranted defendant's motions to seal all confidential information previously submitted tothe court by plaintiff and for injunctive relief prohibiting plaintiff from disseminatingdiscovery material in violation of the parties' confidentiality agreement, unanimouslyaffirmed, without costs.
In this health-care whistleblower action, plaintiff, a second-year resident at defendanthospital, claims, inter alia, that defendant retaliated against her for complaining aboutpatient care, and ultimately terminated her employment. On January 29, 2009, the parties,by their attorneys, entered into a confidentiality agreement in order "to permit thediscovery of information deemed confidential" and "preserve any privilege that mayattach to a document produced pursuant to this Stipulation . . . against otherparties." The agreement defined confidential information as including informationconcerning the "performance of a medical or quality assurance review function" andpatients' medical conditions, and allowed the parties to designate information anddeposition testimony as confidential. Confidential information was only to be disclosedto "Qualified Persons" and to be used only for this litigation, except as otherwiseprovided, and required that any papers filed with the court which contained confidentialinformation be "filed under seal." The agreement also provided a method by which aparty could challenge the designation of information as confidential or discloseconfidential information to another party.
Plaintiff now seeks to vacate the confidentiality agreement on the ground that herformer counsel exceeded his authority by entering into the agreement. Plaintiff maintainsthat she only authorized her former attorney to enter into a confidentiality agreementrelating to the medical or quality assurance analysis of a particular patient, and that shedid not learn that he exceeded this authority until February 2010. Regardless, plaintiff isstill bound by the agreement as her former attorney entered into the same with "apparentauthority" (see Hallock v State of New York, 64 NY2d 224, 231-232 [1984]). Atthe time that her attorney entered into the confidentiality [*2]agreement, he had already been representing plaintiff forseveral months, during which time he had filed an amended complaint, entered into apreliminary conference order, served discovery demands, and discussed confidentialitydesignations with defense counsel and plaintiff. Such conduct clothed plaintiff's formercounsel in apparent authority to enter into the subject stipulation, which involved a"procedural or tactical decision[ ]" in the management of litigation (id. at 230).
Moreover, plaintiff's failure to move to vacate the confidentiality agreement for overthree years after learning of its existence, and for more than nine months after being toldby the court below of the need for such a motion in order to disavow the effects of theagreement, estops her from denying her obligations thereunder (see Hallock at230-231; Matter of Silicone Breast Implant Litig., 306 AD2d 82, 85 [1st Dept2003]; 1420 Concourse Corp. v Cruz, 175 AD2d 747, 749-750 [1st Dept 1991]).
The court properly continued a prior temporary restraining order which preventedplaintiff from disseminating information produced during discovery which had beendesignated by defendant as confidential or privileged and issued a sealing order herein.In addition to being protected from disclosure to third parties by the confidentialityagreement, the information at issue implicated the protections of Education Law §6527 (3) and Public Health Law § 2805-m, to the extent that it related to a medicalor a quality assurance review function (see Logue v Velez, 92 NY2d 13, 16-17[1998]; Bernholc v Kitain, 294 AD2d 387, 388 [2d Dept 2002]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Gonzalez, P.J., Friedman, Renwick, Freedman and Richter, JJ.