In the NY Labor Law action of Del Gross v. K & R Relectric, plaintiff claims a traumatic brain injury along with a number of cognitive issues as a result of an alleged December 2014 work accident where he was struck on the head by an unsecured hammer that fell from a ladder which plaintiff went to move. During discovery, it was revealed that plaintiff has a long standing history of substance abuse and mental health treatment as early as 2012, two years prior to the subject accident, as well as substance abuse and mental health treatment post-accident, including as recently as 2019. Plaintiff claimed that these treatment records were not discoverable under Mental Hygiene Law § 33.13(c)(1).

The lower court granted our motion to compel authorizations for these records and plaintiff appealed the decision. On appeal, we argued the lower court was correct in ordering plaintiff to provide authorizations to obtain plaintiff’s pre- and post- accident mental health and substance abuse records due to the TBI claim in order to establish plaintiff's baseline competency prior to the accident and how the post-accident treatment intertwined with his TBI claim.

The 1st Department affirmed the lower court, holding that plaintiff put his mental health condition in issue such that the interests of justice significantly outweighed the need to maintain confidentiality of those records.