New York State Court of Claims

New York State Court of Claims

GASPER v. THE STATE OF NEW YORK, #2000-016-077, Claim No. 100044, Motion Nos. M-61818, M-62121, M-62122


Motions of pro se claimant for relief based on a violation of the patient-physician privilege were denied on the grounds that such privilege had been waived. Poor person petition was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-61818, M-62121, M-62122
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Andrew Gasper
Defendant's attorney:
No appearance
Third-party defendant's attorney:

Signature date:
September 25, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The underlying claim of pro se claimant Andrew Gasper alleges denial of medical treatment and discriminatory medical treatment by the Department of Correctional Services ("DOCS"). Motion no. M-61818 is claimant's motion for permission to amend his claim to assert a violation by defendant of claimant's physician-patient privilege under CPLR §4504 in that the Attorney General's office obtained a copy of claimant's DOCS medical records. In motion no. M-62121, claimant seeks sanctions for this alleged violation of his patient-physician privilege. In motion no. M-62122, claimant seeks permission to proceed as a poor person and to have counsel assigned.

The physician-patient privilege of CPLR §4504 is waived when a claimant affirmatively puts his or her physical or mental condition at issue by commencing litigation. See, e.g., Koump v Smith, 25 NY2d 287, 303 NYS2d 858 (1969); Hoenig v Westphal, 52 NY2d 605, 439 NYS2d 831 (1981). In this case, claimant has sued defendant on the grounds that DOCS denied him medical treatment and discriminated against him with regard to such treatment. He has thus affirmatively put his physical or mental condition at issue. Accordingly, he has waived the physician-patient privilege of CPLR §4504.

As to his motion for permission to proceed as a poor person and for assignment of counsel, this is the third such application that claimant has made in this case. For the reasons set forth in my order on the first such motion, no. M-59636, dated July 19, 1999 and filed July 20, 1999, such relief is not available to claimant.

Accordingly, having reviewed the submissions,[1] IT IS ORDERED that motion nos. M-61818, M-62121 and M-62122 are denied.

September 25, 2000
New York, New York

Judge of the Court of Claims

  1. [1]Aside from the pleadings, the following were reviewed: claimant's notice of motion and affidavit in support of motion no. M-61818; claimant's notice of motion and affidavit in support on motion no. M-62121 with Exhibits 1-15; and claimant's notice of motion and affidavit in support on motion no. M-62122 with Exhibit A. Defendant submitted no papers on any of these motions.