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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Helen M. GARINGER, Respondent. Mental Hygiene Legal Service, on Behalf of Jane Doe, Appellant.

Decided: May 27, 2003

NANCY E. SMITH, J.P., HOWARD MILLER, BARRY A. COZIER and REINALDO E. RIVERA, JJ. Mental Hygiene Legal Service, Mineola, N.Y. (Sidney Hirschfeld, Dennis B. Feld, and Kim L. Darrow of counsel), appellant pro se. Giacomo, Gallo, Feinstein & Naishtut, LLP, Rye Brook, N.Y. (Steven D. Feinstein of counsel), for respondent.

In a proceeding pursuant to Public Health Law §§ 2782(k) and 2785, and Mental Hygiene Law § 33.13, to release certain medical and clinical records, the appeal is from an order of the Supreme Court, Westchester County (Barone, J.), entered December 19, 2002, which granted the petitioner's motion to compel the release of medical and clinical records to the extent of, inter alia, directing that the results of HIV and hepatitis tests taken by Jane Doe be released to the petitioner, and denied the cross motion of the Mental Hygiene Legal Service, on behalf of Jane Doe, to dismiss the proceeding for failure to state a cause of action.   By decision and order on motion of this court dated January 8, 2003, enforcement of the order appealed from was stayed.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the proceeding is dismissed.

In the order appealed from, the Supreme Court, inter alia, ordered that the results of any HIV and hepatitis tests taken by the patient Jane Doe be released to the petitioner, and, if her records did not contain the results of such tests, directed her to take the necessary tests, the results of which were to be released to the petitioner.   We reverse.

 Where, as here, evidentiary material is considered, the criterion for determining if a pleading states a cause of action is whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;  Capotosto v. City of New York, 288 A.D.2d 419, 420, 734 N.Y.S.2d 102;  Steiner v. Lazzaro & Gregory, 271 A.D.2d 596, 597, 706 N.Y.S.2d 157).   When read in conjunction with the evidentiary record, the petition fails to allege any material facts to demonstrate that the disclosure of Jane Doe's confidential HIV information is warranted by a clear and imminent danger to the petitioner (see Public Health Law § 2785[2][b] ), or that Jane Doe's clinical records should be disclosed based on a finding that the interests of justice significantly outweigh the need for confidentiality (see Mental Hygiene Law § 33.13[c][1] ).   The record contains no evidence whatsoever that Jane Doe was suspected of being HIV-positive.

 The petition also fails to cite specific statutory authority that would permit the Supreme Court to compel Jane Doe to be tested for HIV (see Public Health Law § 2781;  Matter of Michael WW, 203 A.D.2d 763, 611 N.Y.S.2d 47;  Matter of Doe v. Connell, 179 A.D.2d 196, 583 N.Y.S.2d 707).   Furthermore, in the absence of evidence that Jane Doe had or was suspected of having hepatitis, the Supreme Court abused its discretion in directing that she be tested for the disease (see Matter of Troy C. v. Janice T., 137 A.D.2d 527, 524 N.Y.S.2d 267).

Accordingly, the petition should have been dismissed.

The petitioner's remaining contentions are without merit.

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