The following papers were read and considered by the Court on these motions:
Defendant’s Notice of Motion to Dismiss, Defendant’s Affirmation in
Support with annexed Exhibits A-C, Claimant’s Affirmation in Opposition,
Claimant’s Notice of Motion for Summary Judgment, Claimant’s
Affidavit in Support of Motion for Summary Judgment and Defendant’s
Affirmation in Opposition with annexed Exhibits A-D. Defendant, the State of New
York, has moved to dismiss the claim in this matter pursuant to CPLR 3211 for
failure to state a cause of action. Claimant, Anthony Medina, a pro se
inmate, has opposed this motion. Claimant has also filed a separate motion to
strike defendant’s affirmative defenses and for an order of summary
judgment in his favor.
The claim, filed on September 13, 2007, alleges that defendant, through its
agents, improperly and without authorization released claimant’s medical
records to the Office of the Attorney General. The medical records were
released in connection with the legal defense of a separate Article 78
proceeding initiated by claimant in the New York State Supreme Court. Claimant
also contends in his claim that a portion of the released medical records were
not related to the Article 78 proceeding.
The Article 78 proceeding was brought by claimant to challenge the correctional
facilities’ denial of his request for specific medical treatment.
Defendant used portions of claimant’s medical records to establish that
claimant underwent numerous examinations by medical staff and refused
opportunities for further treatment (see Def Exh A).
Defendant contends that the release of claimant’s medical records to the
Attorney General’s Office was properly executed pursuant to New York State
Department of Correctional Services (DOCS) regulation, 7 NYCRR § 5.24(b).
7 NYCRR § 5.24(b) as amended, effective Jan. 26, 2005, provides that
“[f]or the purpose of providing legal services on behalf of the State, its
agencies, officials, employees and persons described in Correction Law, section
24-a, such [inmate medical] records may be released to the Office of the
Attorney General, and to outside counsel certified pursuant to Public Officers
Law, section 17.”
Claimant argues that defendant’s reliance on 7 NYCRR § 5.24(b) is in
error and that the decision in Davidson v State of New York, 3 AD3d 623
[3d Dept 2004], lv denied 2 NY3d 703 (2004), is controlling. Claimant is
also seeking an order of summary judgment in his favor. Claimant concedes that
he placed his medical records in issue by commencing his Article 78 proceeding
but asserts nonetheless that defendant needed to obtain his authorization before
releasing his inmate medical records to the Attorney General’s Office.
Additionally, claimant contends that some of the released medical records
contained medical information which was immaterial and irrelevant to the Article
A litigant has been deemed to have waived the physician-patient privilege when
in bringing a legal action that person has affirmatively placed his mental or
physical condition in issue (Arons v Jutkowitz, 9 NY3d 393, 409 
citing Dillenbeck v Hess, 73 NY2d 278, 287 ). “[A] party
should not be permitted to affirmatively assert a medical condition in seeking
damages ... while simultaneously relying on the confidential physician-patient
relationship as a sword to thwart the opposition in its efforts to uncover facts
critical to disputing the party’s claim” (id.). Clearly,
claimant waived the physician-patient privilege in regard to his relevant
medical records by commencing the Article 78 proceeding.
In Davidson, the Court held that the release of an inmate’s
medical records without authorization, violated the applicable DOCS regulations,
namely 7 NYCRR § 5.24(b). At that time, 7 NYCRR § 5.24(b) required
that inmate medical records shall only be released to certain categories of
persons or entities if a court has issued a subpoena or there is a court order
signed by a judge specifically demanding the production of medical records
(see also Davidson v State of New York, 3 AD3d 623 [3d Dept
2004], lv denied 2 NY3d 703 ). However, subsequent to the decision
in Davidson, 7 NYCRR § 5.24(b) was amended so as to remove the
requirement for a subpoena or other court order prior to the release of an
inmate’s medical records to the Office of the Attorney General in its
defense of a legal proceeding. 7 NYCRR § 5.24(b) does not require the
inmate’s prior approval or authorization before the release of his medical
records to the Attorney General’s Office.
Consequently, the release of claimant’s medical records to the Office of
the Attorney General was not a violation of the current requirements specified
by 7 NYCRR § 5.24(b). Therefore, to the extent claimant is basing his cause
of action on the violation of 7 NYCRR § 5.24(b) that portion of his claim
must be dismissed.
However, as the court in Davidson v State of New York, 3 AD3d 623 [3d
Dept 2004], supra, recognized it is well settled that the release of
medical records must be material and relevant to the underlying action.
As the party seeking summary judgment, claimant must make a prima facie
showing of entitlement to judgment as a matter of law, by offering
sufficient evidence to eliminate any material issues of fact from the case
(Cox v Kingsboro Medical Group, 88 NY2d 904 ; Winegrad v New
York Univ. Med. Center, 64 NY2d 851 ; Zuckerman v City of New York,
49 NY2d 557 ). Failure to make a prima facie showing requires
denial of summary judgment, regardless of the sufficiency of the opposing papers
(Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853, ). Once
the proponent of a summary judgment motion establishes a prima facie
showing then the burden shifts to the opposing party to produce evidentiary
proof in admissible form sufficient to demonstrate the existence of material
issues of fact which require a trial of action (Zuckerman v City of New
York, 49 NY2d 557, 562 ).
Additionally, a motion to dismiss affirmative defenses must be made on the
grounds that the defenses are not stated or that they are without merit (CPLR
3211[b]). The moving party bears the burden of coming forward with sufficient
proof to demonstrate that the defense cannot be maintained (Arquette v State
of New York, 190 Misc 2d 676 [Ct Cl 2001]). It is error for a court to
strike a defense if material issues of fact remain unresolved (Matter of
Harrison v State of New York, 262 AD2d 833 [3d Dept 1999] and in fact
“[i]f there is doubt as to the availability of a defense, it should not be
dismissed” (Duboff v Board of Higher Educ. of City of N.Y., 34 AD2d
824 [2d Dept 1970]).
Claimant’s arguments in support of his motion for summary judgment do not
eliminate all material issues of fact from the case nor do they demonstrate that
defendant’s affirmative defenses cannot be maintained. Defendant argues
in reply to claimant’s motion that only the relevant portions of
claimant’s medical records were used in the defense of the Article 78
proceeding. Notably, neither party has presented this Court with a copy of
those medical records. Thus, the Court is unable to determine at this juncture
whether all of the released medical records were material and relevant to the
Article 78 proceeding.
Therefore, for the foregoing reasons, claimant’s motion is denied.
Defendant’s motion to dismiss is granted, in part, to the extent