Page 38 - WCBA Appellate Practice Committee CLE May 2024-Handout

defendants moved, inter alia, to compel the plaintiff to provide an Arons authorization to interview the
PA, and the Supreme Court denied that branch of the defendants’ motion.

In Arons, the Court of Appeals held that attorneys were permitted to continue the practice of interviewing
an adverse party’s treating physician ex parte, when that party has affirmatively placed his medical
condition in controversy, but that under the privacy rule forbidding disclosure of an individual’s protected
health information without a valid authorization, except under certain circumstances as provided under
the rule, the attorney must first obtain a valid authorization, or comply with certain other procedural
prerequisites.

The Second Department found that Supreme Court properly denied that branch of the defendants’
motion. The Court held that compelling the plaintiff to provide such an authorization would constitute an
unwarranted extension of the Court of Appeals’ holding in Arons v Jutkowitz to include an ex parte
interview with a medical provider about the cause of an accident, rather than about the diagnosis or
treatment of the injury that allegedly resulted from the accident. The court noted that article 31 of the
CPLR affords litigants numerous discovery devices with which they may obtain such information.

Mackoff v Bluemke-Mackoff, 222 AD3d 67 (November 2023) by Ford, J.

In this action for a divorce and ancillary relief, the Supreme Court denied the defendant’s motion for leave
to amend her answer to change the date of the parties’ same-sex marriage from the date of their civil
marriage ceremony to the date of their earlier religious marriage ceremony, which occurred six years prior
to the passage of the Marriage Equality Act (“MEA”). The MEA provides that a marriage that is otherwise
valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.

The Second Department found that the defendant’s motion should have been granted, as her request for
leave to amend her answer was not prejudicial to the plaintiff, palpably insufficient, or patently devoid of
merit. Although the parties’ same-sex religious ceremony was not recognized as a legal marriage since, at
the time, New York’s statutory law limited marriage to opposite-sex couples, there were no allegations
that the parties’ relationship was void or voidable for any reason, and nothing in the record suggested
that the parties’ religious marriage was not otherwise valid prior to the enactment of the MEA. Further,
considering the legislative history of the MEA, the treatment under the MEA of couples married outside
of New York State, and the constitutional protections afforded to the right to marry, there was a colorable
claim that the MEA should be applied retroactively to recognize the parties’ pre-MEA religious marriage.

Matter of Village of Maybrook v Teamsters Local 445, 222 AD3d 96 (November 2023) by Brathwaite
Nelson, J.

In this matter, the Teamsters Local 445 (“the Union”) filed a grievance on behalf of an employee of the
Village, who, for the entirety of his employment with the Village, has paid 10% of the cost of his health
insurance through regular payroll deductions. The grievance alleged that pursuant to the parties’
collective bargaining agreement (“CBA”), the Village was obligated to pay the full cost of the employees’
health insurance. The grievance was denied, and the Union filed an administrative appeal, which also was
denied. The Union then filed a demand for arbitration of the grievance. Thereafter, the Village

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