E. D., et al., Plaintiffs–Respondents, v. Kent Security of New York, Inc., Defendant–Appellant. (2024)

Order, Supreme Court, New York County (Margaret Chan, J.), entered April 27, 2022, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion for a protective order limiting discovery of plaintiff Erin Doe's mental health records to the period of five years preceding the date of the alleged sexual assault and of her medical records to the three years preceding that date, and denied defendant Kent Security of New York, Inc.’s motion to compel discovery to the same extent, unanimously affirmed, without costs.  Appeal from so much of the order that directed plaintiff's psychotherapy notes be submitted for in camera review before disclosure, dismissed, as nonappealable.

Although plaintiff placed her mental health at issue, the court providently exercised its discretion in placing reasonable temporal limitations on disclosure of her mental health and medical records (see Jones v. FEGS–WeCARE/Human Resources, NYC, 139 A.D.3d 627, 628, 30 N.Y.S.3d 860 [1st Dept. 2016];  Farrell v. E.W. Howell Co., LLC, 103 A.D.3d 772, 773, 959 N.Y.S.2d 735 [2d Dept. 2013]).  The court was entitled to do so in order to prevent Kent from causing plaintiff unreasonable annoyance and embarrassment (see CPLR 3103[a];  Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 457, 461, 470 N.Y.S.2d 122, 458 N.E.2d 363 [1983]).

To the extent that Kent contests the portion of the order directing in camera review of plaintiff's psychotherapy notes, there is no appeal as of right from that portion of the order, as it does not affect a substantial right of the parties within the meaning of CPLR 5701(a)(2)(v) (see Damour v. Montefiore Med. Ctr., 32 A.D.3d 772, 820 N.Y.S.2d 884 [1st Dept. 2006];  Marriott Intl., Inc. v. Lonny's Hacking Corp., 262 A.D.2d 10, 11, 690 N.Y.S.2d 569 [1st Dept. 1999]).  We decline to exercise our discretion to grant leave to appeal, particularly as in camera inspection of the record is “advisable in most instances” when discovery of psychiatric records is at issue (Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d at 461, 470 N.Y.S.2d 122, 458 N.E.2d 363).