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Rivera v. New York City Transit Authority

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 4, 2010

YVETTE RIVERA, PLAINTIFF-RESPONDENT,
v.
NEW YORK CITY TRANSIT AUTHORITY, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered on or about March 16, 2009, which, insofar as appealed from, granted plaintiff's motion to strike defendants' answer for failure to comply with discovery demands only to the extent of directing defendants to produce HIPAA authorizations for the records of 20 doctors and medical facilities requested by plaintiff, unanimously reversed, on the facts, without costs, and the motion denied.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Nardelli, Catterson, DeGrasse, Manzanet-Daniels, JJ.

120831/00

While defendant Batista waived the physician-patient privilege with respect to his physical condition by asserting the affirmative defense of unanticipated medical emergency (CPLR 3121[a]; CPLR 4504[a]; Rivera v New York City Tr. Auth., 11 AD3d 333 [2004]; Koump v Smith, 25 NY2d 287, 294 [1969]), plaintiff failed to demonstrate the relevance of Batista's post-accident medical records to the condition that allegedly caused the accident (CPLR 3101[a]; see Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100304

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