Mayer v. Cusyck

—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court abused its discretion in compelling Mary K. Mayer (plaintiff) to provide unrestricted authorizations for her medical records without first conducting an in camera review of those records to determine whether they are material and related to any 938 physical and mental conditions affirmatively placed in controversy by plaintiffs (see, Carter v Fantauzzo, 256 AD2d 1189, 1190; Moon v Sheraton Corp., 110 AD2d 509). Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff in a motor vehicle accident. After issue was joined, defendant moved for an order compelling plaintiff to provide unrestricted authorizations for her medical records, and plaintiffs cross-moved for a protective order with respect to records concerning treatment unrelated to the injury that plaintiffs had placed in controversy. In bringing the action, plaintiff waived the physician/patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy (see, Carter v Fantauzzo, supra, at 1190; Geraci v National Fuel Gas Distrib. Corp., 255 AD2d 945, 946; Sadicario v Stylebuilt Accessories, 250 AD2d 830, 831). We therefore modify the order by granting in part defendant’s motion and plaintiffs’ cross motion and compelling plaintiffs to furnish the court with all medical records that they contend are not material and related to any physical or mental conditions affirmatively placed in controversy by plaintiffs and compelling plaintiff to provide an authorization for the remaining records, and we remit the matter to Supreme Court for an in camera review of any submitted records to determine whether they are material and related to any physical or mental conditions affirmatively placed in controversy by plaintiffs (see, Carter v Fantauzzo, supra, at 1190). (Appeal from Order of Supreme Court, Onondaga County, Major, J. — Discovery.) Present— Pigott, Jr., P. J., Hayes, Wisner, Scudder and Lawton, JJ.