KENNEDY v. CHILDREN HOSPITAL OF BUFFALO (2003)

 We reject defendant's contention that Supreme Court (Notaro, J.) abused its discretion in denying defendant's request for authorization to obtain certain medical records of plaintiff before commencement of the new trial granted by this Court on a prior appeal (Kennedy v. Children's Hosp. of Buffalo [appeal No. 3], 288 A.D.2d 918, 732 N.Y.S.2d 326).   Plaintiff commenced this action, individually and on behalf of her infant daughter, seeking damages for the personal injuries sustained by her daughter while a patient in defendant's neonatal intensive care unit.   The information in those medical records was suppressed by Supreme Court (Kane, J.) pursuant to CPLR 3103(c) prior to the first trial because the records had been released by defendant to defendant's attorney without plaintiff's authorization, and we determined on the prior appeal that the court did not abuse its discretion in precluding the use of those medical records pursuant to CPLR 3103(c) (Kennedy, 288 A.D.2d at 919, 732 N.Y.S.2d 326).   Nevertheless, contrary to plaintiff's contention, the doctrine of law of the case does not apply with respect to this issue because that doctrine “does not apply to rulings * * * [that] are based on the discretion of the court” (Brothers v. Bunkoff Gen. Contrs., 296 A.D.2d 764, 765, 745 N.Y.S.2d 284).   A sanction imposed under CPLR 3103(c) is discretionary (see Lipin v. Bender, 84 N.Y.2d 562, 571, 620 N.Y.S.2d 744, 644 N.E.2d 1300, rearg. denied 84 N.Y.2d 1027, 623 N.Y.S.2d 182, 647 N.E.2d 454), and thus a successor justice on a retrial may determine whether the sanction remains appropriate (see People v. Evans, 94 N.Y.2d 499, 504-505, 706 N.Y.S.2d 678, 727 N.E.2d 1232, rearg. denied 96 N.Y.2d 755, 725 N.Y.S.2d 280, 748 N.E.2d 1076;  Brothers, 296 A.D.2d at 765, 745 N.Y.S.2d 284).   We conclude, however, that the court herein did not abuse its discretion in denying defendant's instant request for authorization (see generally Evans, 94 N.Y.2d at 506, 706 N.Y.S.2d 678, 727 N.E.2d 1232), particularly in view of the pattern of misconduct by defendant's attorney throughout the first trial;  the fact that defendant itself released plaintiff's medical records to its attorney without plaintiff's authorization (see Public Health Law § 18 [6] );  defendant's failure to demonstrate unusual or unanticipated circumstances warranting the additional discovery prior to the retrial (see 22 NYCRR 202.21[d];  Romero v. City of New York, 272 A.D.2d 599, 600, 708 N.Y.S.2d 156);  and the fact that the medical records of plaintiff's daughter, which were properly obtained, contain information about plaintiff's medical condition.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM.