Kenneh v Jey Livery Serv.

Kenneh v Jey Livery Serv. 2015 NY Slip Op 06993 Decided on September 29, 2015 Appellate Division, First Department 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.

Decided on September 29, 2015
Mazzarelli, J.P., Sweeny, Renwick, Manzanet-Daniels, JJ.
15742N 300630/13

[*1] Lassana Kenneh, et al., Plaintiffs-Respondents,

v

Jey Livery Service, et al., Defendants-Appellants.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Marjorie E. Bornes of counsel), for appellants.

Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Gregory C. McMahon of counsel), for respondents.

Order, Supreme Court, Bronx County (Laura Douglas, J.), entered February 3, 2015, which, to the extent appealed from as limited by the briefs, denied defendants' motion to compel plaintiff Lassana Kenneh to provide HIPAA-compliant authorizations for production of medical records relating to his preexisting diabetic condition, unanimously affirmed, without costs.

By bringing this action to recover damages for serious injuries allegedly suffered to his right knee, shoulders and spine as the result of a motor vehicle accident, plaintiff waived the physician-patient privilege as to all medical records

pertinent to those conditions (see Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456-457 [1983]; CPLR 3121[a]; CPLR 4504[a]). The motion court providently exercised its discretion in determining that plaintiff did not place his diabetic condition in issue by asserting those serious injury claims, or by alleging that he continued to suffer anxiety and other symptoms following the accident (see Gumbs v Flushing Town Ctr. III, L.P., 114 AD3d 573 [1st Dept 2014]; Felix v Lawrence Hosp. Ctr., 100 AD3d 470 [1st Dept 2012]; cf. Vodoff v Mehmood, 92 AD3d 773 [2d Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2015

CLERK