Rivera v New York City Tr. Auth.

Rivera v New York City Tr. Auth. 2010 NY Slip Op 01737 [71 AD3d 438] March 4, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

Yvette Rivera, Respondent,
v
New York City Transit Authority et al., Appellants.

—[*1] Jeffrey Samel & Partners, New York (Robert G. Spevack of counsel), for appellants.

Pazer, Epstein & Jaffe, P.C., New York (Perry Pazer of counsel), for respondent.

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 Health Insurance Portability and Accountability Act authorizations for the records of 20 doctors and medical facilities requested by plaintiff, unanimously reversed, on the facts, without costs, and the motion denied.

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]; 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 postaccident medical records to the condition that allegedly caused the accident (CPLR 3101 [a]; see Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]). Concur—Andrias, J.P., Nardelli, Catterson, DeGrasse and Manzanet-Daniels, JJ.