Maisch v. Millard Fillmore Hospitals

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of Millard Fillmore Hospitals (Hospital), Karen Blackford, Sharon Woodin and Yukio Sonoda, M.D. (defendants) for a protective order prohibiting plaintiffs’ use in this malpractice action of a letter report written by the chairperson of the Department of Obstetrics & Gynecology at the Hospital. No incident report was made by the Hospital to the Department of Health pursuant to Public Health Law § 2805-¿, and the statutes providing confidentiality and prohibiting disclosure of such reports therefore do not apply (see, Public Health Law § 2805-m; Education Law § 6527 [3]). Defendants did not establish that the letter report in question was generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j (see, Crea v Newfane Inter-Community Mem. Hosp., 224 AD2d 976, 977; Zion v New York Hosp., 184 AD2d 441, rearg granted 183 AD2d 386). Thus, they have not met their burden of 1018 establishing that the document is entitled to statutory confidentiality and protection from disclosure (see, Koump v Smith, 25 NY2d 287, 294-295; Westhampton Adult Home v National Union Fire Ins. Co., 105 AD2d 627, 628). (Appeal from Order of Supreme Court, Erie County, LaMendola, J.— Discovery.) Present — Green, J. P., Lawton, Wisner, Hurlbutt and Callahan, JJ.