Published on:

New York Court Discusses Privacy Considerations Regarding Medical Evidence


In this criminal action, a motor vehicle accident occurred in June 2007at the intersection of Hungry Harbor Road and Rosedale Road in North Woodmere, New York. An officer was responded to an emergency call that a female was grabbed on the street and dragged into a car. Upon receiving the call, he drove without lights and sirens eastbound on Hungry Harbor Road through a residential area toward Rosedale Road. It was at this point that the officer’s vehicle and defendant’s vehicle collided. Plaintiff was a passenger in the defendant’s vehicle.

According to a Nassau DWI Attorney, a field breathalyser test on defendant was conducted at the scene which revealed her blood alcohol level to be. 15. Defendant was arrested at the scene of the accident for Driving While Intoxicated (DWI). Plaintiff commenced a personal injury action against defendant, the County and the officer in 2007. The latter and his wife also brought an action for DUI against the defendant in 2009.

Defendant’s criminal case resulted in an acquittal and in an automatic sealing of the proceedings. Defendant had never submitted to a further blood alcohol test by the arresting officers, and the initial field breathalyzer test was held not admissible in the criminal trial.

In 2008, defendant served a FOIA (“FOIA”) request upon the Nassau County Police Department Legal Bureau. The County denied the request indicating that disclosure at that time might interfere with the criminal proceeding and that the request should be renewed after the full adjudication of the criminal proceeding. In 2009, Defendant, pursuant to F.O.I.A., requested the information again and the County denied the request. Defendant served a Notice for Discovery and Inspection, on the County requesting the Police Report from the incident that the officer was responding to when the subject accident occurred. She sought the Central Complaint Report to which the officer was responding; any 911 calls and on air communications made relative to the emergency call that he was responding to or the subject accident. Defendant argues the nature of the underlying call the officer was responding to and whether an emergency is critical to the defense of this case.

In 2010 the officer served a Notice of Discovery and Inspection on defendant seeking duly executed HIPAA authorizations by defendant permitting the officer to obtain the complete Emergency Room record and hospital chart relative to her treatment on the day of the accident and an authorization from defendant unsealing the criminal proceedings and permitting them to obtain certified copies of all proceedings, testimonies and other evidence related to her arrest. Thereafter, the County served a Notice for Discovery and Inspection on defendant seeking names and addresses of witnesses to the accident and a duly executed authorization unsealing the criminal proceedings and permitting the County to obtain all certified copies of all proceedings, testimonies and other evidence. The County argues that any blood work obtained by the Emergency room staff is relevant in pursuing this matter. According to the County, the discovery should be provided to establish the mental and physical condition of the defendant which is a material issue in this matter.

The defendant both applications concerning the unsealing of the criminal proceeding arguing that by receiving an acquittal in the criminal proceeding the issue concerning the impairment of her ability to operate a motor vehicle has been resolved. She further argues that she was arrested at the scene of the accident on charges which were unsubstantiated and were an attempt to use her as a scapegoat.

The County opposes defendant’s application arguing that they have properly responded to the plaintiff’s discovery request by either providing the requested information or by providing a statement indicating that the County reserves its rights to produce discoverable material up to and including the trial of the matter. Regarding the 911 tapes, the County argues that they cannot be produced pursuant to NYS County Law Section 308(4) The County further claims compliance with the Plaintiff’s request for the “Central Complaint Report” arguing that it does not have a “Central Complaint Report” and all discoverable documents and reports in its possession regarding the subject motor vehicle accident have been provided. According to the County, the remaining documents are privileged, confidential and not discoverable.

The officer and his wife have submitted a Reply to the opposition to their cross-motion arguing that the criminal proceedings are very relevant to this civil proceeding.

The filing of a cross-claim by defendant has put her conduct at issue.

CPLR §3101 (a) provides that there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof. The Court of Appeals in a case, held that the words material and necessary are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. This statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise.

Civil Rights Law §50-a(l) exempts from disclosure personnel records of police officers without the express written consent of the subject officer or a lawful court order. Prior to issuing an order for an in camera review of an officer’s personnel records, the court must give “interested parties the opportunity to be heard” and the inspection may be conducted only upon “a clear showing of facts sufficient to warrant the judge to request records for review Civil Rights Law §50-a[2]). The initial burden, therefore, is on the party seeking disclosure to demonstrate “in good faith, ‘some factual predicate’ warranting the intrusion into the personnel records of the officer.

Information regarding the incident to which Officer McKeon was responding to is very relevant to the matter before this Court. As such, all three motions are granted.

The Court ordered, that the County shall provide any and all recordings of the on-air communication between the Officer and the Communications Bureau relative to his assignment and response to the accident to which he was responding. It is further ordered, that the County shall provide the recording of any and all 911 calls made in connection with the incident that the officer was responding to and the accident in which he was involved within 14 days.

Drinking and driving is a dangerous habit. It my kill the driver, worse, it can kill innocent people. Here in Stephen Bilkis, we have our Nassau County Criminal lawyers to guide and inform you of your rights. Contact us now and be advised.

Posted in:
Published on:

Comments are closed.

Contact Information