SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 47 --------------------------------------------------------------------X USAA CASUALTY INSURANCE COMPANY as subrogee

of ERIC F. NEWSUM; MARIO SMITH, GERALDINE SIMMONS, ERIC NEWSUM and DARNELL NEWSUM, Plaintiffs, -againstJEWISH CHILD CARE ASSOCIATION OF NEW YORK, INC. and JOHN DOE and JANE DOE, Defendant. ---------------------------------------------------------------------X SCHMIDT, DAVID, J.: In this action to recover damages, plaintiffs Mario Smith and Geraldine Simmons seek an order to compel disclosure of documents that defendant, the Jewish Child Care Association of New York (JCCA), claims are privileged. See JCCAs privilege log dated March 5, 2012. The documents in question contain information about Trey Solomon, an underage child in the care of the JCCA during the relevant time period. At the last conference, held on September 12, 2012, the court requested 3-page letter briefs from each side to explain their position on this issue.1 Succinctly stated, the JCCA claims that the documents are privileged and are protected from disclosure under Social Services Law 372 (3). In response, plaintiffs argue that the soughtafter documents belong to a non-party and are necessary to the litigation, and therefore, confidentiality must give way to necessity. On August 30, 2012, following an in camera review of the documents in JCCAs file, the 1 Contrary to the JCCAs characterization, the court did not ask for the letter briefs to address the issue of relevance, that question having already been addressed in the courts August 30, 2012 order (infra). Index No. 3035/2010 DECISION and ORDER

Court issued an order setting forth the universe of documents that it deemed were relevant to this action. See Order dated August 30, 2012. Now, upon further review of the contested documents, the court confirms that JCCAs assertion of privilege is proper. Indeed, all of the relevant documents are covered by one of three privileges: the physician-patient privilege, the psychologist-patient privilege, and the social worker-client privilege. CPLR 4054, 4507, 4508. In this connection, all of the documents consist of confidential communications between a professional and the patient/client in the context of a professional relationship. As such, privilege is a threshold hurdle that plaintiffs must overcome to obtain discovery of the aforementioned documents. CPLR 3101(b). Significantly, plaintiffs acknowledge that Trey Solomon has not waived his privilege and, as a non-party, has not placed his physical or mental condition at issue. Furthermore, the JCCA properly asserted the privilege on his behalf. See Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130, 135 (1983) (absent waiver by patient, hospital properly asserted privilege to prevent disclosure of information regarding treatment of patient); Community Serv. Socy. v Welfare Inspector Gen. of State of N.Y., 91 Misc 2d 383, 388 (Sup Ct, New York County 1977) affd 65 AD2d 734 (1st Dept 1978) (granting motion to quash subpoena served on social work agency seeking information protected by CPLR 4508 [social worker privilege]). Therefore, the Court will not entertain plaintiffs request for disclosure of the privileged documents until they obtain an informed waiver from Mr. Solomon.2 Only then will the court engage in the balancing test urged by plaintiffs, i.e., whether the need for confidentiality overrides the need for the otherwise relevant evidence. Quillen v State of New York, 191 AD2d 2 This would be in the form of an affidavit in which Mr. Solomon would state that he understood all of the ramifications of such waiver, that it was voluntary, and with whom, if anyone, he discussed his decision to waive his rights.

31, 34 (3d Dept 1993); see Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452 (1983). The foregoing constitutes the decision and order of this court. Dated: November 29, 2012 ENTER: _______________________ J.S.C.