You are here: / / DEFENDANT’S HEALTH AT THE TIME OF THE TRAFFIC ACCIDENT WAS NEVER...
, , ,

DEFENDANT’S HEALTH AT THE TIME OF THE TRAFFIC ACCIDENT WAS NEVER PLACED IN CONTROVERSY AND THE PHYSICIAN-PATIENT PRIVILEGE WAS NOT WAIVED BY A LETTER TO PLAINTIFF’S ATTORNEY INDICATING DEFENDANT SUFFERED FROM DEMENTIA, ANXIETY AND DEPRESSION (SECOND DEPT).

The Second Department, over a two-justice dissent, determined that defendant driver’s (Rozansky’s) medical condition at the time of this 2004 traffic accident was not “in controversy” and therefore the driver’s medical records were not discoverable. Rozansky, who subsequently died, had, in 2006, submitted a letter from his social worker to plaintiff’s attorney claiming he suffered from dementia, anxiety and depression, allegedly to be excused from a deposition, but otherwise the issue of the Rozansky’s health was not raised:

… [T]he plaintiffs failed to sustain their initial burden of demonstrating that Rozansky’s condition at the time of the accident was “in controversy” within the meaning of CPLR 3121(a) … . Furthermore, even if the plaintiffs had met that burden, neither Rozansky nor his estate waived the privilege attached to the medical records, as the defendant has not asserted a counterclaim or sought to excuse Rozansky’s conduct at the time of the accident on the basis of some condition … . Contrary to the conclusion of our dissenting colleagues, Rozansky did not place his mental condition at the time of the accident “in controversy” or waive the privilege attached to his medical records by allegedly declining to be deposed … . Neither Rozansky nor his estate have sought to excuse his conduct at the time of the accident … , due to any condition. At best, Rozansky placed his mental condition in September 2006 at issue by allegedly refusing to appear for a deposition … . The plaintiffs could have moved at that time to compel the deposition and challenged the social worker’s diagnosis. Instead, nine years after the social worker’s letter, and six years after Rozansky’s death, and after filing three notes of issue over the course of some seven years, indicating that discovery was complete and the case was ready for trial, the plaintiffs purported to use the mechanism of a trial subpoena to compel production of Rozansky’s medical records from October 22, 1999, to the present. We disagree with our dissenting colleagues that Rozansky’s alleged invocation of dementia in September 2006, by submission of a letter from his social worker, established a waiver of the privilege attached to his medical records from October 22, 1999. Peterson v Estate of John Rozansky, 2019 NY Slip Op 02568, Second Department, 4-3-19

 

You might also like
Best Interests of Child Justified Denial of Petition to Vacate Acknowledgment of Paternity (Equitable Estoppel)
STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).
SELLER’S ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT PROPERLY DISMISSED; THE CONTRACT WAS SUBJECT TO ATTORNEY APPROVAL BUT NO DEADLINE FOR ATTORNEY-APPROVAL WAS SET BY THE AGREEMENT; DEFENDANTS’ COUNSEL INFORMED PLAINTIFF’S COUNSEL THAT DEFENDANTS DID NOT WISH TO GO FORWARD WITH THE PURCHASE EITHER SEVEN OR NINE DAYS AFTER THE CONTRACT WAS EXECUTED, WHICH WAS DEEMED A REASONABLE TIME (SECOND DEPT).
CITY’S POTENTIAL LIABILITY FOR THE ACTIONS OF A CITY BUS DRIVER WAS BASED ON RESPONDEAT SUPERIOR, THEREFORE A NEGLIGENT HIRING AND RETENTION ACTION WAS NOT VIABLE AND THE DRIVER’S PERSONNEL FILE WAS NOT DISCOVERABLE (SECOND DEPT).
Proper Way to Handle an Inconsistent Verdict Explained
Supervision of Student Could Not Have Prevented Injury
Substantial Evidence Did Not Support Department of Health’s Finding that Property Transfers Rendered Petitioner Ineligible for Medicaid Benefits
PLAINTIFF-PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; ALTHOUGH A PLAINTIFF NEED NOT DEMONSTRATE THE ABSENCE OF COMPARATIVE NEGLIGENCE IN SUPPORT OF SUMMARY JUDGMENT, THE COURT CAN CONSIDER COMPARATIVE NEGLIGENCE WHERE, AS HERE, THE PLAINTIFF MOVES TO DISMISS THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA... CAUSE OF ACTION BASED UPON A THEORY NOT ALLEGED IN THE NOTICE OF CLAIM PROPERLY...