SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

599 

CA 13-01926 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ. 

 

FAREEDAH A. BARNES, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

DANIEL S. HABUDA, INDIVIDUALLY AND DOING 

BUSINESS AS DAN’S COLLISION, 

DEFENDANT-RESPONDENT. 

(APPEAL NO. 2.) 

 

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR PLAINTIFF-APPELLANT. 

HISCOCK & BARCLAY, LLP, ROCHESTER (SANJEEV DEVABHAKTHUNI OF COUNSEL),

FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Patrick

H. NeMoyer, J.), entered June 10, 2013. The order adjourned trial

until plaintiff discloses the records of Jeff Reinhardt, M.D., or

provides a copy of those records to Supreme Court for in camera

review, or there is a determination of the appeal taken by plaintiff

from an order entered April 30, 2013. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this personal injury action arising from a motor

vehicle accident, plaintiff appeals from two orders relating to the

release of certain of her medical records. The medical records in

question are those of a physician whom plaintiff asserts is her

gynecologist (hereafter, physician). By the order in appeal No. 1,

Supreme Court ordered plaintiff, inter alia, to “produce duly executed

medical authorizations permitting defendant to obtain records of and

speak with” the physician. When plaintiff failed to comply with that

provision of the order, the court, upon defendant’s motion to strike

plaintiff’s pleadings, issued the order in appeal No. 2, affording

plaintiff the additional option of providing the physician’s records

to the court for in camera review. 

We note at the outset that plaintiff’s appeal from the order in

appeal No. 1 must be dismissed because that order was superseded by

the order in appeal No. 2 in relevant part, i.e., the order in appeal

No. 2 afforded plaintiff the option of either providing the medical

authorizations directly to defendant or providing the records to the

court for in camera review (see generally Loafin' Tree Rest. v Pardi
-2- 599 

CA 13-01926 

[appeal No. 1], 162 AD2d 985, 985).

With respect to the merits of appeal No. 2, it is well settled

that the trial court “ ‘is vested with broad discretion to control

discovery and that the court’s determination of discovery issues

should be disturbed only upon a showing of clear abuse of 

discretion’ ” (Eaton v Hungerford, 79 AD3d 1627, 1628). It is also

well settled that, “ ‘[i]n bringing the action, plaintiff waive[s] the

physician[-]patient privilege only with respect to the physical and

mental conditions affirmatively placed in controversy’ ” (Tirado v

Koritz, 77 AD3d 1368, 1369). “ ‘The waiver of the physician-patient

privilege made by a party who affirmatively asserts a physical

condition in its pleading does not permit discovery of information

involving unrelated illnesses and treatments’ ” (id.; see Donald v

Ahern, 96 AD3d 1608, 1610). 

Here, we conclude that the court, in its superseding order,

properly afforded plaintiff the option of providing the records to the

court for an in camera review. If, as plaintiff asserts, the

physician’s medical records contain no information regarding the

injuries she allegedly sustained as a result of the subject motor

vehicle accident, then the records are irrelevant to this action and

should not be disclosed to defendant. Alternatively, the court may

redact the records to include only information relevant to this

action. 

Entered: June 20, 2014 Frances E. Cafarell

Clerk of the Court