Tanner v. Dr. A.

Appellate Division of the Supreme Court of New York

Tanner v. Dr. A.

228 A.D.2d 238, 644 N.Y.2d 20, 644 N.Y.S.2d 20, 1996 N.Y. App. Div. LEXIS 6457

Appellate Division of the Supreme Court of the State of New York·Decided June 11, 1996·Published·Cited by 2 cases

Opinion

The motion court properly exercised its discretion to review the material offered by petitioner in support of the subpoena in camera and without disclosure to respondent (see, Matter of Levin v Murawski, 59 NY2d 35, 42, n 4; Matter of Levin v Guest, 112 AD2d 830, affd 67 NY2d 629, cert denied 476 US 1171; Atkins v Guest, 201 AD2d 411; Halper v State Bd. for Professional Med. Conduct, 151 AD2d 643). We do not construe the requirement that an application such as this be "in writing, on notice to the licensee” (Public Health Law § 230 [10] [o]), or the right given the licensee to submit comments to the investigation committee (Public Health Law § 230 [10] [a] [iii]), as superseding of the statute and requiring disclosure of materials submitted to the court in camera. Matter of McBarnette v Sobol (83 NY2d 333), where the licensee sought information for the purpose of cross-examining complainants who had already testified at a hearing and were known to the licensee, is distinguishable. Nor can confidentiality be waived by the complainant (Atkins v Guest, supra, at 412). The petition sufficiently established a reasonable basis for conducting a CMR and the relevancy of the record sought. We have reviewed respondent-appellant’s remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Rubin, Kupferman and Nardelli, JJ.

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The motion court properly exercised its discretion to review the material offered by petitioner in support of the subpoena in camera and without disclosure to respondent (see, Matter of Levin v Murawski, 59 NY2d 35, 42, n 4; Matter of Levin v Guest, 112 AD2d 830, affd 67 NY2d 629, cert denied 476 US 1171; Atkins v Guest, 201 AD2d 411; Halper v State Bd. for Professional Med. Conduct, 151 AD2d 643). We do not construe the requirement that an application such as this be "in writing, on notice to the licensee” (Public Health Law § 230 [10] [o]), or the right given the licensee to submit comments to the investigation committee (Public Health Law § 230 [10] [a] [iii]), as superseding of the statute and requiring disclosure of materials submitted to the court in camera. Matter of McBarnette v Sobol (83 NY2d 333), where the licensee sought information for the purpose of cross-examining complainants who had already testified at a hearing and were known to the licensee, is distinguishable. Nor can confidentiality be waived by the complainant (Atkins v Guest, supra, at 412). The petition sufficiently established a reasonable basis for conducting a CMR and the relevancy of the record sought. We have reviewed respondent-appellant’s remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Rubin, Kupferman and Nardelli, JJ.

Tanner v. Dr. A., 228 A.D.2d 238, 644 N.Y.2d 20, 644 N.Y.S.2d 20, 1996 N.Y. App. Div. LEXIS 6457 (N.Y. Ct. App. 1996).

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