Second Department Declines to Expand Scope of Arons

The New York Court of Appeals in Arons v. Jutkowitz¹ concluded that a personal injury plaintiff may be compelled to provide an authorization permitting the adverse party’s counsel to conduct and ex parte interview of the plaintiff’s treating physician. The medical provider would be permitted, but not required, to make the requested disclosure. In the 15 years since Arons was decided, “Arons,” or speaking authorizations, have become a vital tool for defense counsel probing a plaintiff’s medical condition and injuries.

On July 12, 2023, in Gladys Yan v. Kalikow Management Inc.,² the Appellate Division, Second Department, affirmed the lower court’s decision denying the defendants’ motion to compel the plaintiff, according to Arons, to provide an authorization that would allow the defendant’s counsel to interview the plaintiff’s treating physician assistant about the reason the plaintiff tripped and fell instead of her injury and medical treatment. 

The issue before the court was whether an Arons applied to disclosure of information about causation and liability rather than merely medical treatment. As this was a case of first impression, the Second Department utilized the analysis imposed by the First Department in a similar case in which it declined to expand the reach of Arons to require depositions of medical providers whose records included conflicting accounts of how the plaintiff’s accident occurred.³ The Second Department in Yan also declined the defendant’s request to extend the scope of Arons beyond the provision of speaking authorizations. 

The appellate court concluded that authorizing the inclusion of an ex parte interview with a medical provider about the cause of an accident would constitute an unwarranted extension of the New York Court of Appeal’s holding in Arons. The court noted that alternative discovery methods exist under Article 31 of the New York Civil Practice Law & Rules to obtain the sought after information, and counsel should look to those disclosure devices. Practitioners should be aware of the limited scope of the Arons holding in order to avoid delay and unnecessary motion practice seeking to expand its reach.

If you have any questions regarding the content of this alert, please contact Amanda Miller, associate, at amiller@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area.
                                                                            
 ¹9 N.Y.3d 393 (2007).
 ²2023 NY Slip Op 03817 (2d Dep’t 2023).
 ³Rucinski v. More Restoration Co. Inc., 147 A.D.3d 485 (1st Dep’t 2017).