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McNeill v. Town of Islip

Supreme Court of New York, Second Department

December 4, 2013

Carolyn F. McNeill, etc., et al., respondents,
v.
Town of Islip, defendant, County of Suffolk, appellant. Index No. 34486/08

Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for appellant.

Gruenberg Kelly Della, P.C., Ronkonkoma, N.Y. (Glenn Auletta and Zachary M. Beriloff of counsel), for respondents.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, SANDRA L. SGROI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant County of Suffolk appeals from an order of the Supreme Court, Suffolk County (Martin, J.), dated July 31, 2012, which denied its motion to compel the plaintiffs to provide duly executed authorizations to secure certain medical records of the nonparty Cheryl McNeill, the sister of the plaintiff Carolyn F. McNeill.

ORDERED that the order is affirmed, with costs.

The defendant County of Suffolk moved, by order to show cause, to compel the plaintiffs to provide duly executed authorizations to secure certain medical records of Cheryl McNeill, a nonparty, who is the sister of the plaintiff Carolyn F. McNeill. Service of the order to show cause was made in compliance with the requirements imposed by the court (Whelan, J.). In opposition to the County's motion, Cheryl McNeil asserted, in an affidavit, that the records sought were privileged. She did not, however, contend that she received inadequate notice of the County's motion. The Supreme Court denied the motion solely on the ground that notice was deficient under CPLR 3101(a)(4).

Cheryl McNeil waived any objection to the adequacy of notice by failing to assert that ground in opposition to the County's motion (see Benson Park Assoc. LLC v Herman, 93 A.D.3d 609, 609; cf. Kooper v Kooper, 74 A.D.3d 6, 13-14; Yihye v Blumenberg, 260 A.D.2d 371, 371-372; People ex rel. Golden v Golden, 57 A.D.2d 807, 807). Accordingly, the Supreme Court should not have sua sponte raised the issue of notice and denied the motion on the ground of inadequate notice (cf. Dupps v Betancourt, 99 A.D.3d 855, 856; Matter of Mandala v Jablonsky, 242 A.D.2d 271, 272).

Nonetheless, we affirm the order appealed from because the County was not entitled to disclosure of the records it sought. Cheryl McNeil was not a party to the action, her records were subject to the physician-patient privilege, and she expressly declined to waive that privilege (see CPLR 4504[a]; Roman v Turner Colours, 255 A.D.2d 571, 572; Muniz v Preferred Assoc., 189 A.D.2d 738, 738; Wepy v Shen, 175 A.D.2d 124, 124-125; Baldwin v Franklin Gen. Hosp., 151 A.D.2d 532, 533; Dalley v LaGuardia Hosp., 130 A.D.2d 543, 544; cf. Scipio v Upsell, 1 A.D.3d 500, 500).

The parties' remaining contentions need not be addressed in light of our determination, are without merit, or are not properly before this Court.

SKELOS, J.P., BALKIN, LEVENTHAL and SGROI, JJ., concur.


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