Kromanik v. Twiss

44 Misc. 2d 627, 254 N.Y.S.2d 718, 1964 N.Y. Misc. LEXIS 1266

• Court: New York Supreme Court
• Decided: November 24, 1964
• Status: Published

Opinion

Hyman Korn, J.

The individual defendant moves for discovery and inspection of the plaintiff’s psychiatric record at Bellevue Hospital. By cross motion, the defendant hospital moves for the same relief. In opposition, the plaintiff avers that exchange of medical information is not provided for in malpractice cases by the rules of this court. The City of New York appears on behalf of Bellevue Hospital and seeks protection of the court if the motion is granted. While rule XI of the New York and Bronx Counties Supreme Court Buies provides for an exchange of medical information, except in malpractice cases, CPLB 3120 and 3121 allow discovery and inspection and an examination of a party where the mental or physical condition is in controversy. The CPLB takes precedence over the rules. If the defendants can have a mental examination with the production of hospital records pursuant to CPLB 3121, they cannot be deprived of discovery and inspection of the hospital records which are under the control of the plaintiff, in that they can be procured by authorizations.

Accordingly, the motion and cross motion are granted. Settle order providing for the protection of the hospital involved, by limiting the discovery as indicated in its affidavit.