Narvaez v. Bier

303 A.D.2d 298, 756 N.Y.S.2d 569, 2003 N.Y. App. Div. LEXIS 3063

Opinion

—Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered October 17, 2002, which, in an action for medical malpractice, denied a motion by defendants -appellants, a doctor and his professional corporation, to compel plaintiff to return mammogram films taken of plaintiff at their office, with the proviso that plaintiff provide copies of the films to defendants at defendants’ expense, and also, upon adequate notice, provide the originals of the films to defendants for review by their experts and/or preparation for their depositions, unanimously affirmed, without costs.

It appears that the Office of Professional Medical Conduct (OPMC) confiscated appellants’ records, including the subject mammogram films of plaintiff, in connection with charges it brought against appellants of, inter alia, gross negligence, gross incompetence, fraud, moral unfitness and failure to maintain accurate records, and that OPMC gave the films to plaintiffs attorney once it no longer needed them. It further appears that after OPMC dropped all charges except failure to maintain accurate records, which appellants did not contest, appellant doctor’s license to practice medicine was suspended for a year, and that appellants are no longer in private practice. Even assuming that the films continue to be appellants’ property (see Gerson v New York Women’s Med., 249 AD2d 265 [1998]), plaintiffs apprehension that the films will be lost or damaged if returned to appellants is reasonable {cf. id.), and she should not have to return the films to appellants during the pendency of the litigation (CPLR 3103). We have considered defendants’ other arguments and find them unavailing. Concur — Buckley, P.J., Rosenberger, Lerner, Friedman and Gonzalez, JJ.