| Alford v City of New York |
| 2014 NY Slip Op 02397 [116 AD3d 483] |
| April 8, 2014 |
| Appellate Division, First Department |
| Herbert Alford, Respondent, v City of New York,Defendant, and New York City Housing Authority et al., Appellants. (And a Third-PartyAction.) |
—[*1] Kenneth J. Gorman, New York, for respondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 25,2012, which, to the extent appealed from as limited by the briefs, granted plaintiff'smotion for a protective order precluding disclosure of his medical records pertaining toprior substance abuse and mental health treatment and precluding defendants from usingany such medical records already obtained, and denied defendants New York CityHousing Authority's and Schindler Elevator Corporation's cross motions for sanctionsand to compel disclosure of such records, unanimously affirmed, without costs.
Plaintiff commenced this action to recover for injuries to his knee and back, as wellas post-traumatic stress disorder (PTSD) and mental and psychological injuries, allegedlysuffered when he fell about seven feet down an elevator shaft located in a buildingowned by defendant NYCHA. There is no dispute that plaintiff's condition at the time ofthe accident will be relevant at trial, and medical and hospital records relating to hiscondition at that time have been provided in discovery. The branch of plaintiff's motionseeking leave to withdraw his claim for PTSD and mental and psychological injuries wasgranted, and that part of the order is not addressed by defendants on appeal.
Having granted plaintiff's motion to withdraw the claimed injuries relating to hismental condition, the motion court providently determined that plaintiff cannot becompelled to disclose confidential records relating to prior treatment for substance oralcohol abuse or his mental condition (see Churchill v Malek, 84 AD3d 446, 446 [1st Dept 2011];Mental Hygiene Law § 33.13 [c] [1]). Defendant's remaining claim for "loss ofenjoyment of life," relating solely to his claimed physical injuries, does not warrantdisclosure of substance abuse and mental health treatment information, since its potentialrelevance has not been shown (see L.S. v Harouche, 260 AD2d 250 [1st Dept1999]; Cronin v Gramercy Five Assoc., 233 AD2d 263 [1st Dept 1996]). A [*2]protective order preventing defendants from obtaining orusing plaintiff's medical records regarding his mental health and purported treatment foralcohol abuse was properly issued, because defendants have not shown that the interestsof justice significantly outweigh plaintiff's right to confidentiality (see Napoleoni vUnion Hosp. of Bronx, 207 AD2d 660, 661-663 [1st Dept 1994]). Given defendants'failure to offer expert or other evidence establishing a particularized need for inquiry intomatters not directly at issue in this action, the denial of their discovery request wasappropriate (see Budano vGurdon, 97 AD3d 497, 499 [1st Dept 2012]; Elmore v 2720 Concourse Assoc.,L.P., 50 AD3d 493 [1st Dept 2008]). Concur—Mazzarelli, J.P., Andrias,DeGrasse, Feinman and Kapnick, JJ.