THOMPSON v. Catherine Coleman, Defendant.

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Kelly THOMPSON, Plaintiff-Respondent, v. PIBLY RESIDENTIAL PROGRAMS, INC., Defendant-Appellant, Catherine Coleman, Defendant.

Decided: January 12, 2010

SAXE, J.P., CATTERSON, MOSKOWITZ, DeGRASSE, ABDUS-SALAAM, JJ. Fumuso, Kelly DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge (Albert E. Risebrow of counsel), for appellant. Carro, Carro & Mitchell, LLP, New York (John S. Carro of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered May 15, 2009, which, in an action against a State-certified residential program for mentally ill adults alleging negligent failure to prevent defendant resident's assault against plaintiff resident, inter alia, after an in camera review, directed defendant program to provide plaintiff with certain of its records, redacted so as to pertain only to defendant resident's prior threatening or assaultive behavior toward plaintiff, unanimously affirmed, without costs.

Defendant resident's records, redacted so as not to pertain to diagnosis or treatment but only to behavior, are not privileged and may be used to establish defendant program's prior actual or constructive knowledge of defendant resident's propensity for violence toward plaintiff (see J.Z. v. South Oaks Hosp., 67 AD3d 645 [2009]; Moore v. St. John's Episcopal Hosp., 89 A.D.2d 618, 619 [1982] ). Since records of diagnosis or treatment were not sought and are not at issue, it is irrelevant whether defendant resident placed her medical condition in controversy or that she denied consent to release of the records. Neither Mental Hygiene Law 33.13 nor the Health Insurance Portability and Accountability Act of 1996 bar court-ordered disclosure (see Arons v. Jutkowitz, 9 NY3d 393, 414 [2007] ). We have considered defendant program's other contentions and find them unavailing.