Wrubleski v. Mary Imogene Bassett Hosp.

163 A.D.3d 1248

81 N.Y.S.3d 606

Brian P. WRUBLESKI, Individually and as Executor of the Estate of Maryellen Wrubleski, Deceased, Appellant,

v.MARY IMOGENE BASSETT HOSPITAL et al., Respondents, et al., Defendants.

526017

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

Calendar Date: June 5, 2018

Decided and Entered: July 12, 2018

Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for appellant.

Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Anthony R. Brighton of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Maryellen Wrubleski (hereinafter decedent) was injured in November 2013 when she fell while running at a health club. She underwent surgery to repair a tear of her left hamstring and thereafter retained Kenneth Bobrycki, an attorney, to represent her in a lawsuit pertaining to her injuries. As part of that representation, Bobrycki directed decedent to prepare a written summary of the events that led to her injuries and to keep a medical journal of her treatment. Bobrycki maintains that he specifically told decedent to write the phrase "to my lawyer" at the beginning of the medical journal to "clearly designate that it is a confidential document to be protected by the attorney-client privilege." Decedent apparently heeded this advice and drafted an "injury journal" consisting of several pages of handwritten notes containing an account of the incident and subsequent medical treatment. The first page of the injury journal bears the notation "to my lawyer."

Decedent died suddenly from a pulmonary embolism in December 2013, prompting plaintiff, her husband, to commence this wrongful death action sounding in medical malpractice. In connection with the action, plaintiff provided to his counsel a series of handwritten notes that decedent had drafted prior to her death, which included the injury journal, a list of the medications that she was taking in connection with her postoperative care (hereinafter the medication log) and other miscellaneous entries. During a deposition, plaintiff mentioned that decedent had kept a list of all of the postoperative medications that she took and maintained that she took aspirin every time it was required of her. In response, defendants requested production of, among other things, the medication log and injury journal, but plaintiff invoked the attorney-client privilege as a basis of shielding the documents from disclosure. Thereafter, defendants Mary Imogene Bassett Hospital, Thurston Corporation, Bassett Medical Center, Bassett Healthcare Network and Jocelyn R. Wittstein (hereinafter collectively referred to as the Bassett defendants) moved to compel production of decedent's notes that were being withheld under a claim of privilege. Plaintiff opposed the motion and, at Supreme Court's direction, submitted the requested documents to the court for an in camera review.

In February 2017, Supreme Court denied the Bassett defendants' motion, concluding that the first four pages of the produced documents—including the medication log—were privileged and could only be disclosed upon demonstrating a substantial need for the documents or undue hardship (see CPLR 3101[d][2] ). The Bassett defendants thereafter moved to renew and/or reargue, contending, among other things, that they had a substantial need for the medication log to determine whether decedent complied with postoperative instructions to take medication for anticoagulation therapy. In May 2017, Supreme Court granted the motion and, upon reargument/renewal, directed disclosure of the page containing the medication log, concluding that the attorney-client privilege did not shield that document from disclosure. Plaintiff now appeals.

Initially, we find no merit to the Bassett defendants' contention that plaintiff waived his argument with respect to the attorney-client privilege by failing to appeal from the February 2017 order or to otherwise file a cross motion for reargument. Plaintiff was not aggrieved by the February 2017 order inasmuch as he obtained the full relief that he sought in opposing the motion to compel and, accordingly, could not have appealed therefrom (see CPLR 5511 ; Parochial Bus Sys. v. Board of Educ. of City of N.Y. , 60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ; Matter of Dolomite Prods. Co., Inc. v. Town of Ballston, 151 A.D.3d 1328, 1331, 58 N.Y.S.3d 174 [2017] ; Matter of Baker v. Horace Nye Home , 63 A.D.3d 1415, 1415, 882 N.Y.S.2d 327 [2009] ). Moreover, plaintiff cannot be faulted for failing to file a cross motion, as the February 2017 order was ambiguous. Indeed, Supreme Court candidly noted that its February 2017 order "was not as carefully worded as it should have been" because it did not state whether the original basis for denying the motion was based upon the attorney-client privilege or the privilege afforded to materials prepared in anticipation of litigation. Accordingly, the failure to appeal from the February 2017 order or to file a cross motion for reargument does not preclude appellate review of plaintiff's contentions.

We agree with Supreme Court that the medication log portion of the notes is not protected by the attorney-client privilege and should be disclosed. Trial courts are vested with broad discretion in overseeing the disclosure process, and we will not intervene absent "a clear abuse of that discretion" ( Lue v. Finkelstein & Partners, LLP, 67 A.D.3d 1187, 1188, 888 N.Y.S.2d 290 [2009] [internal quotation marks and citations omitted]; see NYAHSA Servs., Inc., Self–Ins. Trust v. People Care Inc., 155 A.D.3d 1208, 1209, 64 N.Y.S.3d 725 [2017] ). The attorney-client privilege "fosters the open dialogue between lawyer and client that is deemed essential to effective representation" ( Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377, 575 N.Y.S.2d 809, 581 N.E.2d 1055 [1991] ). The privilege " ‘shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship’ " ( NYAHSA Servs., Inc., Self–Ins. Trust v. People Care Inc. , 155 A.D.3d at 1209, 64 N.Y.S.3d 725, quoting Ambac Assur. Corp. v. Countrywide Home Loans, Inc. , 27 N.Y.3d 616, 623, 36 N.Y.S.3d 838, 57 N.E.3d 30 [2016] ; see CPLR 4503[a][1] ; Spectrum Sys. Intl. Corp. v. Chemical Bank , 78 N.Y.2d at 377–378, 575 N.Y.S.2d 809, 581 N.E.2d 1055 ), and the...