Demirayak v. Nassau Chest Physicians, P.C.

203 A.D.3d 1128

163 N.Y.S.3d 415 (Mem)

Tunc DEMIRAYAK, etc., appellant,

v.NASSAU CHEST PHYSICIANS, P.C., et al., respondents, et al., defendants.

2020–04427

Index No. 601249/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 20, 2022

March 30, 2022

Law Office of Caner Demirayak, Esq., P.C., Brooklyn, NY, for appellant.

Wagner, Doman, Leto & Di Leo, P.C., Mineola, NY (David B. De Siver of counsel), for respondents Nassau Chest Physicians, P.C., Jeffrey Wolf, and Sheryl Brustein.

Vigorito, Barker, Patterson, Nichols & Porter, LLP, New York, NY (Adonaid C. Medina of counsel), for respondents St. Francis Hospital, Catholic Health System of Long Island, Inc., and CHS Physician's Partners, P.C.

BETSY BARROS, J.P., REINALDO E. RIVERA, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered May 8, 2020. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was to compel the defendants Nassau Chest Physicians, P.C., Jeffrey Wolf, St. Francis Hospital, Catholic Health System of Long Island, Inc., CHS Physician's Partners, P.C., and Sheryl Brustein to produce certain documents.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The plaintiff commenced this action to recover damages for medical malpractice and wrongful death, etc., alleging, among other things, that the defendant Jeffrey Wolf, a pulmonary disease specialist, negligently performed an electromagnetic navigation bronchoscopy on the plaintiff's wife, Leyla Demirayak (hereinafter the decedent), on December 19, 2016, and thereafter failed to diagnose the decedent's lung cancer. As part of his discovery demands, the plaintiff sought production from Wolf and the defendants Nassau Chest Physicians, P.C., Sheryl Brustein, St. Francis Hospital, Catholic Health System of Long Island, Inc., and CHS Physician's Partners, P.C. (hereinafter collectively the defendants), of, among other things, "documents, reports or logs for electromagnetic navigational bronchoscopies, with patient information redacted where necessary, for each time such procedure was performed by ... Wolf ... before December 19, 2016." The defendants objected, contending that the demand was overbroad and in violation of the Education Law, Public Health Law, and HIPAA. In response, the plaintiff served a supplemental demand which sought production of, among other things, "[d]ocuments, logs, reports, memorandums, bills, invoices or other paper or electronic records showing how many times the electromagnetic navigational bronchoscopy was performed between October 10, 2015 and December 19, 2016 by ... Wolf," and "[r]esults of each electromagnetic navigational bronchoscopy performed between October 10, 2015 and December 19, 2016 by ... Wolf," with patient information redacted. Thereafter, the plaintiff moved, among other things, to compel disclosure of the requested documents. In an order entered May 8, 2020, the Supreme Court, among other things, denied that branch of the plaintiff's motion which was to compel the defendants to produce the requested documentation relating to electromagnetic navigational bronchoscopies performed by Wolf on nonparty patients prior to December 19, 2016. The plaintiff appeals.

CPLR 3101(a)(1) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by ... a party, or the officer, director, member, agent or employee of a party." " ‘The words, "material and necessary," are ... to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial’ " ( McAlwee v....