## Facts

- Robert M. Bernholc sued Eric Kitain and others for defamation.
- In the course of the litigation, materials concerning defendants’ internal peer review and quality management/quality assurance procedures in a medical setting became part of the record.
- Defendants sought an order sealing the record and preventing disclosure of the peer review and quality assurance materials, asserting statutory confidentiality.
- Defendants relied on Education Law § 6527(3) and Public Health Law § 2805-m, which protect specified medical peer review and malpractice-prevention/quality assurance materials from disclosure.
- The trial court initially denied sealing, then on reargument sealed only certain identified exhibits while leaving other related materials unsealed.
- Defendants appealed, arguing the statutory protections required sealing of all protected peer review and quality assurance materials.

## Issues

1. Whether materials relating to internal medical peer review and quality management/quality assurance procedures are confidential and exempt from disclosure under Education Law § 6527(3) and Public Health Law § 2805-m.
2. Whether the court should grant a motion to seal in full when the record includes materials within those statutory confidentiality protections.
3. Whether an appeal from an earlier sealing order is reviewable when a later order on reargument supersedes it.

## Decision

- The appeal from the earlier order was dismissed because it was superseded by the later order on reargument.
- The later order was reversed insofar as appealed from.
- Defendants’ motion to seal was granted in its entirety as to the protected peer review and quality assurance materials.
- The earlier order denying sealing was vacated.

## Legal Principles

- Education Law § 6527(3) protects from disclosure proceedings and records relating to medical or quality assurance review functions and participation in medical/dental malpractice prevention programs.
- Public Health Law § 2805-m provides confidentiality for certain hospital-gathered information, including reviews of physician competence, and exempts such materials from disclosure in civil discovery.
- When materials fall within these statutory protections, they are non-discoverable and may be sealed to preserve confidentiality; selective or partial sealing is improper if it leaves protected materials exposed.
- An appeal from an order that has been superseded by a subsequent order on reargument is dismissed as academic.

## Conclusion

The Appellate Division held that records connected to hospital peer review and quality assurance functions are statutorily confidential and not subject to disclosure in civil litigation, requiring complete sealing of those materials once the statutory privilege applies.


Bernholc v. Kitain, 294 A.D.2d 387, 741 N.Y.S.2d 736 (N.Y. App. Div. 2d Dep’t 2002)