Raymond J. Keays, as Administrator of the Estate of Marie R. Keays, Deceased, Plaintiff, v. Vanderheyden Hall, Inc., Defendant, 43 Misc. 2d 399

Harold E. Koreman, J. In this action for alleged conscious pain and suffering and wrongful death of the late Marie R. Keays, the defendant moves for an order compelling the plaintiff to furnish written authorizations permitting it to obtain hospital records respecting decedent.

The defendant alleges that decedent was injured on October 14, 1961 on defendant’s premises; that, after the accident, she received medical attention at the Samaritan Hospital in Troy, New York; that she died on December 5, 1961 thus precluding defendant from having her examined by a physician in its behalf; that a notice pursuant to OPLR 3121 was served upon the attorneys for the plaintiff on or about March 20, 1,964 but defendant has not received Such authorization and neither has plaintiff moved for a protective order with respect to such notice.

Plaintiff opposes this application on the grounds that 3121 authorizes the production of hospital records only in connection with a mental or physical examination of a party to the action, and, in this instance, the defendant does not and could not seek a physical examination, and, furthermore, the decedent, whose hospital records are sought, is not a party to the action. The strict construction which plaintiff places upon 3121 would defeat the purpose and spirit of the “ Disclosure ” provisions of the CPLB as expressed in 3101, subd. (a).

In addition, it is my opinion that the defendant is entitled to the written authorization pursuant to 3120. (See Matter of Rubin, 161 Misc. 374.) Accordingly, the motion is granted.