ALIANO v. LUSTERMAN (2001)

Plaintiff commenced this action for malpractice against defendant who is the therapist for plaintiff, his wife and children.   In addition to this action, plaintiff filed a complaint with the New York State Department of Education against defendant which resulted in the opening of an investigation with regard to the alleged professional misconduct.   Plaintiff now seeks to review the filings made by defendant with the Department of Education in defending against plaintiff's complaint and to review what findings were made and what action, if any, was taken thereon.   Upon making the application, it was agreed that the documents responsive to plaintiff's discovery demands would be reviewed in camera.   Having conducted such a review, plaintiff's motion must be denied.

The disciplinary files of the Department of Education are “confidential and not subject to disclosure at the request of any person, except upon the order of a court in a pending action or proceeding ” (Emphasis added).   Educ. Law § 6510(8).   Research reveals no case law applying § 6510(8) in the context of discovery in a malpractice case.   However, disclosure of disciplinary files was denied in a newspaper's Freedom of Information request on the strong public policy favoring closure of professional disciplinary files.   See, Matter of Johnson Newspaper Corp. v. Melino, 151 A.D.2d 214, 547 N.Y.S.2d 915 (3rd Dept.1989), affd., 77 N.Y.2d 1, 563 N.Y.S.2d 380, 564 N.E.2d 1046 (1990);  and Sinicropi v. County of Nassau, 76 A.D.2d 832, 428 N.Y.S.2d 312 (2nd Dept.), lv. app. den. 51 N.Y.2d 704, 432 N.Y.S.2d 1028, 411 N.E.2d 797 (1980).

 Generally, professional disciplinary proceedings in New York are not open to public scrutiny.   See, People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487 (1928).   That rule has been applied to the confidentiality of medical disciplinary proceedings as well.  Matter of Lazachek v. Board of Regents, 101 A.D.2d 639, 475 N.Y.S.2d 160 (3rd Dept.), lv. app. den., 63 N.Y.2d 608, 483 N.Y.S.2d 1023, 472 N.E.2d 1043 (1984).   Such rules have been construed strictly and are enforced only where the law clearly mandates non disclosure.  Matter of Herald Co. v. Weisenberg, 59 N.Y.2d 378, 465 N.Y.S.2d 862, 452 N.E.2d 1190 (1983) (unemployment insurance hearings are not closed even though some employee information may not be disclosed).

Here, there is no express Legislative intent to permit the kind of disclosure plaintiff seeks herein.   Such requests may also be analogized to similar discovery applications in related contexts such as committees for medical review or professional standards (Educ. Law § 6527[3] ), and hospital quality assurance review and related committees (Public Health Law § 2805-m).   The proceedings and determinations of such committees are not subject to disclosure under CPLR Art. 31 except with regard to the testimony given by a party in an action involving the subject matter of such testimony.   See, Carroll v. Nunez, 137 A.D.2d 911, 524 N.Y.S.2d 578 (3rd Dept.1988) which held that the patient was entitled to malpractice defendant surgeon's statement made at a peer review proceeding.   However, the patient was not entitled to defendant surgeon's personnel file or other patient complaints.   Id.

 By Order granted on September 11, 2000, this court denied plaintiff's request for disclosure of the psychological records of plaintiff's children and wife arising from defendant's treatment of them.   Indeed, consistent with that order, the records sought by plaintiff on this application are not discoverable to the extent that they relate to the treatment of his wife and/or children;  even if they are otherwise discoverable, except with redaction.   See Carroll v. Nunez, supra.   Where the privacy rights of non-parties is impacted by a disclosure request, it should be denied in the absence of a significant showing of need.   CPLR 3103.   See e.g., Lazan v. Bellin, 95 A.D.2d 751, 464 N.Y.S.2d 191 (1st Dept.1983).

In the context of the investigation by the Department of Education instigated by plaintiff, the documents disclosed to the court for in camera review reveal no formal charges being brought.   There has been no finding of professional misconduct so as to even justify disclosure on the grounds of collateral estoppel barring defendant from defending this action.   See e.g., David v. Biondo, 92 N.Y.2d 318, 680 N.Y.S.2d 450, 703 N.E.2d 261 (1998).

 This court cannot discern a basis for exercising its discretion to permit the release of the information sought.   In effect, plaintiff is attempting to bootstrap his complaint in this malpractice action via the apparently meritless now closed disciplinary proceeding, which he instigated.   Accordingly, disclosure of defendant's disciplinary records and documents relating thereto must be denied.

LEONARD B. AUSTIN, J.