A Manhattan resident claiming emotional distress damages in a lawsuit that alleges his apartment building’s doorman harassed and assaulted him, including by coming after him with a wrench and using anti-Semitic language against him, cannot shield his own mental health records, a state appeals court has decided.
An Appellate Division, First Department panel has ruled that resident Steven Rosen “put his mental condition in issue by seeking to recover damages for emotional distress as a result of the actions alleged in the complaint,” citing Cynthia B. v New Rochelle Hosp. Med. Ctr. and Budano v. Gurdon.
As a result, the unanimous panel upheld Manhattan Supreme Court Justice Erika Edwards’ 2017 decision that denied Rosen’s motion for a protective order concealing his mental-health records; rejected his alternative request for an in-camera records inspection; and ordered Rosen to provide the defendants, which included the realty and management companies overseeing his building, with unlimited authorization for all mental health records connected to his treatment for his alleged injuries.
The panel, composed of Justices David Friedman, Rosalyn Richter, Marcy Kahn, Jeffrey Oing and Peter Moulton, also noted in their decision, issued on Thursday, that Rosen never specified “how he or any third party would be subject to ‘unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice’ as a result of the disclosure of the mental health treatment records at issue,” citing CPLR 3103[a].
Moreover, he failed to “otherwise establish that disclosure would be detrimental to himself or a third party,” the justices wrote.
Concluding the terse opinion, the justices also wrote that “in any event, it is noted that plaintiff previously stipulated to unlimited disclosure of his mental health treatment records,” citing Quilty v. Cormier.
In his 2015-filed complaint, Rosen alleged that doorman Francisco Medina, also a named defendant, spit at him, threw a package at him, came after him while holding a wrench, cursed at him, used anti-Semitic language against him, threw away his unit and mailbox keys, and otherwise harassed and intimidated him.
He alleged he was paying nearly $2,200 a month in rent at the Murray Hill Manor building while occupying a rent-regulated apartment. The claims he brought included negligent hiring against the realty company, as well as assault and battery.
In her 2017 decision, Edwards noted that Rosen had failed to comply with numerous court orders requiring disclosure of his psychological and emotional treatment records, and had not complied with the parties’ so-ordered stipulation. Edwards wrote that it appeared Rosen withdrew an authorization he’d provided to the defendants and stopped a doctor from handing the records over, instead allowing only the disclosure on one letter which, Edwards wrote, “is insufficient to comply with the court orders.”
Michael Fahey, a Bartels & Feureisen member in White Plains who represented Rosen, said in a phone interview Friday that he was astounded by the First Department panel’s decision.
“I was surprised at the First Dept’s decision, I felt at a minimum these records should have been reviewed in camera,” he said, adding that earlier in the litigation, “we initially got a stay [that protected the records], which I thought was appropriate.”
He also said that in court papers filed in the case, “we articulated that we don’t believe that [the records] are related to the claims that are made in this case.”
Magdalene Skountzos, a former senior associate at Brody, O’Connor & O’Connor in New York who represented Medina, said the panel’s decision was right.
Rosen “has claimed that the alleged incidents caused emotional distress, but he would not allow defendants to access his records, thereby preventing us from assessing whether the damages claimed were actually caused by the alleged incidents,” she said.
Lauren Bryant, an associate at Mischel & Horn in New York, representing defendants MHM Realty LLC and Manhattan Skyline Management Corp., couldn’t be reached for comment.