Maisch v. Millard Fillmore Hospitals

Dec 27, 2000
Appeal No. 1
Versions:278 A.D.2d 838
718 N.Y.S.2d 776
2000 N.Y. App. Div. LEXIS 13532

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted that part of the motion of defendant Theodore G. Costich, M.D. (defendant) seeking to compel discovery of statements made by defendant that are reflected in notes taken by plaintiffs during conversations with him (see, CPLR 3101 [e]). The court erred, however, in failing to order that those notes be disclosed in their entirety. The notes are discoverable in their entirety pursuant to CPLR 3101 (e) (see, McKenzie v McKenzie, 78 AD2d 585, 586; Walker v Erie-Lackawanna R. R. Co., 43 Misc 2d 1098, 1099; see also, Theisen v Sunnen, 186 AD2d 81, lv dismissed 81 NY2d 759; Ancona v Net Realty Holding Trust Co., 153 Misc 2d 946, 952). The court properly denied that part of defendant’s motion seeking disclosure of certain daily logs documenting the condition of plaintiffs’ daughter. The daily logs were made in anticipation of litigation, and thus are conditionally privileged (see, CPLR 3101 [d] [2]; Hannold v First Baptist Church, 254 AD2d 746, 747). Defendant failed to establish that he would suffer undue hardship if disclosure of the logs were denied (see, CPLR 3101 [d] [2]). Defendant also failed to establish that the daily logs were used to refresh the recollection of plaintiffs with respect to their deposition testimony, and thus that the privilege was thereby waived (see, Hannold v First Baptist Church, supra, at 747). (Appeal from Order of Supreme Court, Erie County, LaMendola, J.— Discovery.) Present — Green, J. P., Hayes, Hurlbutt, Kehoe and Balio, JJ.