Lopez v. Agustin

The plaintiff, whose decedent was a passenger in a car that was struck by a car driven by the appellant, met his burden of establishing that the appellant’s physical condition at the time of the accident was “in controversy,” within the meaning of CPLR 3121 (a) (see Dillenbeck v Hess, 73 NY2d 278, 286-289 [1989]; cf. Nappi v North Shore Univ. Hosp., 31 AD3d 509 [2006]). Thus, the burden shifted to the appellant to establish that the hospital records at issue were privileged and, thus, exempt from disclosure (see CPLR 3101 [b]; Kivlehan v Waltner, 36 AD 3d 597, 599 [2007]; Lombardi v Hall, 5…