Filing a CPL 250.10 Notice Waives Physician/Psychologist Privilege for Related Civil Discovery

Commentary on S.M. v City of New York, 2026 NY Slip Op 03248 (App Div, 1st Dept May 21, 2026).

1) Introduction

This First Department decision arises from a devastating April 27, 2019 incident in which Shanice Martin stabbed her two children, killing one and injuring the other. The surviving infant and her father sued, among others, New York City Health + Hospitals/Lincoln Medical Center (NYCHH), alleging negligent psychiatric/medical care shortly before the stabbing—specifically, that NYCHH failed to detain Martin, failed to report to the Statewide Central Register of Child Abuse and Maltreatment, and otherwise failed to protect the infant plaintiff.

Discovery turned on access to Martin’s Lincoln Hospital medical/psychiatric records. Martin did not consent, defaulted in the civil case (and no default judgment was pursued), and NYCHH resisted disclosure under the physician-patient and psychologist-patient privileges and related confidentiality statutes.

The key legal issue was novel at the appellate level: whether Martin’s filing in her related criminal case of a CPL 250.10 notice of intent to present a psychiatric defense constitutes an implied waiver of the confidentiality privileges under CPLR 4504 and CPLR 4507, enabling civil plaintiffs to obtain her hospital records.

2) Summary of the Opinion

Procedurally, the motion court had denied renewal as “moot” in light of an earlier First Department order in the same case (S.M. v City of New York, 225 AD3d 558 [1st Dept 2024]). The First Department reversed, holding the renewal motion was not moot because the earlier appeal expressly declined to decide the CPL 250.10-waiver argument due to lack of preservation and record support. The Court granted renewal and, upon renewal, granted plaintiffs’ motion to compel NYCHH to disclose Martin’s medical/psychiatric/mental health records.

3) Analysis

A. Precedents Cited (and How They Shaped the Holding)

• Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452 (1983): Supplies the central waiver framework—privileges may be waived expressly or implicitly by placing mental condition in issue. The Court relied on this to treat CPL 250.10 notice as an “issue-placing” act.
• Rega v Avon Prods., Inc., 49 AD3d 329 (1st Dept 2008): Reinforces the implied-waiver principle when a party’s mental condition is placed in controversy.
• Dillenbeck v Hess, 73 NY2d 278 (1989): Serves multiple roles: (i) a mere denial in pleadings is not waiver; (ii) once confidentiality is voluntarily destroyed in judicial proceedings, waiver can carry over; and (iii) the privilege cannot be used as both “sword and shield.” The Court invoked Dillenbeck both to distinguish non-waiver conduct and to anchor the “sword/shield” policy against selective disclosure.
• People v Al-Kanani, 33 NY2d 260 (1973), cert denied 417 US 916 (1974): Reaffirms that asserting insanity and offering proof effects a “complete waiver,” permitting even treating psychiatrists to testify. The Court used Al-Kanani as the historical baseline, but then explained why modern CPL 250.10 practice supports waiver earlier than trial.
• People v Bloom, 193 NY 1 (1908): Quoted via Al-Kanani for the enduring maxim that once “a secret is out,” it cannot be “caught again,” emphasizing irreversibility of waiver.
• Webdale v North Gen. Hosp., 7 Misc 3d 947 (Sup Ct, NY County 2005), affd 24 AD3d 153 (1st Dept 2005): A crucial comparator. Webdale allowed civil disclosure of a nonparty criminal defendant’s psychiatric records where an insanity defense had been raised, even if records were not formally entered at trial. Here, the First Department clarified Webdale: waiver does not necessarily require affirmative disclosure of the records at trial when it is otherwise clear the condition has been put at issue.
• People v Gorman, 123 Misc 2d 370 (Sup Ct, NY County 1984) vs. People v Chavis, 181 Misc 2d 540 (Sup Ct, NY County 1999): The decision identifies conflicting trial-court authority on whether the “mere filing” of CPL 250.10 notice waives privilege. The First Department aligned with Chavis and rejected Gorman’s continuing viability in light of statutory evolution and the People’s entitlement to refutation evidence.
• People v Berk, 88 NY2d 257 (1996): The Court used Berk to explain that CPL 250.10 is not solely about scheduling an exam; its legislative purpose is to allow the People to obtain mental health evidence needed to refute mental infirmity defenses. This legislative-purpose analysis was the bridge to treating notice itself as “issue placement.”
• Szmania v State of New York, 82 AD3d 1688 (4th Dept 2011) and Watton v Public Admr. of Kings County, 2022 WL 617007 (Sup Ct, Kings County, Mar. 1, 2022): These decisions illustrate waiver where a criminal defendant sought advantage from mental condition (pleading “not responsible” or using psychiatric condition in mitigation), supporting the First Department’s “advantage-triggered waiver” rationale even absent a trial disclosure event.
• Koump v Martinith, 25 NY2d 287 (1969): Cited for the foundational “sword and shield” limitation on privilege.
• Renewal/procedure authorities: Perretta v New York City Tr. Auth., 230 AD3d 428 (1st Dept 2024) (diligence on renewal); Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460 (1st Dept 2007) (renewal may be granted “in the interest of justice” even if requirements not rigidly met); N.Y. Park N. Salem Inc. v ADBH 22nd Floor Inc., 236 AD3d 573 (1st Dept 2025) (new fact that did not exist earlier satisfies renewal).
• Privacy/limits cited by the Court: Matter of Grand Jury Investigation in New York County, 98 NY2d 525 (2002) (purpose of privilege—candor and privacy expectations); Matter of Farrow v Allen, 194 AD2d 40 (1st Dept 1993) (privilege applies only to what patient intended as confidential); plus federal/administrative references in the Court’s discussion of handling/retention/sealing: Crenshaw v Mony Life Ins. Co., 318 F Supp 2d 1015 (SD Cal 2004); and Matter of R.R., 153 Misc 2d 747 (Sur Ct, Rensselaer County 1992).

B. Legal Reasoning

The Court’s reasoning runs in three linked steps: (1) define waiver principles; (2) interpret CPL 250.10’s function in modern criminal practice; and (3) apply the “issue placement” concept to civil discovery where the criminal defendant is effectively a nonparty.

(1) Waiver by placing condition “in issue.” The Court began with the baseline that medical and psychiatric records are generally protected from disclosure (CPLR 4504; CPLR 4507; Mental Hygiene Law § 33.13[c]). It then applied the settled doctrine that privileges may be waived implicitly when the patient places the mental condition “in issue” (Cynthia B. v New Rochelle Hosp. Med. Ctr.), while cautioning that a mere denial does not suffice (Dillenbeck v Hess).

(2) CPL 250.10 notice as issue placement—especially under modern discovery. The decisive move is treating the notice itself as the act that places mental condition in issue. The Court reasoned that People v Al-Kanani predated significant changes to CPL 250.10; at that time notice required only intent to rely on insanity. After the 1982 amendment, CPL 250.10 expanded to encompass broader mental-condition evidence, and People v Berk explains the statute’s design: enabling the People to obtain mental health evidence to refute the defense. That purpose would be undermined if the defendant could file a notice—thereby triggering reciprocal discovery and evaluation processes—while still claiming that privilege remains wholly intact against compelled access to foundational treatment records.

The Court also anchored its analysis in the post-2020 criminal discovery regime—CPL article 245—highlighting that discovery is now “automatic” and much earlier (CPL 245.10), and that CPL 245.20(1) defines discoverable material broadly as items “relevant to the subject matter of the charges.” The Court treated this strengthened, accelerated exchange as further confirmation that a CPL 250.10 notice is not a neutral placeholder: it operationally signals use of psychiatric evidence and triggers mechanisms for obtaining and reviewing mental health material. In that context, the notice is sufficient to show the defendant has put mental condition at issue.

(3) Carryover into civil discovery; clarifying Webdale. The Court reaffirmed that waiver in a criminal proceeding can carry over to a subsequent civil case so long as the mental condition remains at issue (Dillenbeck v Hess), and it emphasized that this can apply even when the criminal defendant is a nonparty to the civil action (Webdale v North Gen. Hosp.). The Court then went further: to the extent Webdale could be read to require some affirmative disclosure of the records/evidence in the criminal case, the Court clarified that a defendant need not actually disclose evidence at trial when it is otherwise clear the defendant has put the condition in issue in a manner that triggers duties to disclose and review mental health material.

Addressing the “retractable notice” objection. NYCHH argued no waiver should be found because Martin could abandon the psychiatric defense before trial. The Court acknowledged that possibility and noted practical safeguards (e.g., limits on prosecutorial use if the defense is abandoned; HIPAA handling requirements; potential sealing under Uniform Rules part 216). But it rejected “retractability” as dispositive because privilege protects intended confidentiality and reasonable privacy expectations; once a party has chosen a litigation posture that puts the condition at issue (and activates systems designed to surface mental health evidence), the rationale for continued total confidentiality is diminished. The Court framed the alternative rule as enabling impermissible sword-and-shield use (Dillenbeck v Hess; Koump v Martinith).

C. Impact

1) New, appellate-level rule on CPL 250.10 notice and waiver. The decision resolves (in the First Department) the previously unsettled question left to conflicting trial courts: filing a CPL 250.10 notice itself effects an implied waiver of CPLR 4504 and 4507 privileges for relevant treatment records, even before trial.

2) Expanded civil discovery leverage against institutional defendants. In negligent-treatment / negligent-discharge / failure-to-protect cases, plaintiffs often need the patient’s psychiatric history to prove foreseeability, notice, risk assessment failures, and causation. This holding enables plaintiffs to obtain hospital records when the patient cannot or will not consent, if a CPL 250.10 notice has been filed in a related criminal matter.

3) Strategic consequences for criminal defense practice. Filing CPL 250.10 notice now carries clearer collateral consequences: it may open access to treatment records in parallel civil litigation (including where the accused is not participating in the civil action). Defense counsel may weigh timing and scope of notice more carefully, and may more frequently seek sealing orders or protective protocols.

4) Doctrinal clarification of Webdale. The Court’s clarification reduces emphasis on whether records were introduced at trial and increases emphasis on whether the defendant’s litigation posture sufficiently placed mental condition at issue.

4) Complex Concepts Simplified

• Physician-patient privilege (CPLR 4504) / psychologist-patient privilege (CPLR 4507): Rules that generally keep treatment communications and records confidential in litigation, encouraging candor in treatment.
• Mental Hygiene Law § 33.13(c): A statutory confidentiality provision for certain mental health-related information, often intersecting with (but not automatically overriding) evidentiary privileges.
• Implied waiver by “placing condition in issue”: Even without signing an authorization, a person can lose confidentiality protections if they take a litigation position that makes their physical or mental condition a key disputed fact.
• CPL 250.10 notice: A criminal procedure notice that the defendant intends to offer psychiatric evidence (e.g., insanity/mental disease or defect/extreme emotional disturbance). It alerts the prosecution so it can prepare and obtain rebuttal evidence.
• “Sword and shield”: A fairness principle: a litigant cannot use a privileged condition offensively (to gain advantage) while simultaneously blocking the other side’s access to the information needed to test or rebut it.
• Motion to renew (CPLR 2221[e]): A request to revisit a prior ruling based on new facts (or, sometimes, in the interest of justice). Here, the “new” fact was the CPL 250.10 notice that did not exist when the original motion was filed.

5) Conclusion

S.M. v City of New York establishes a significant rule for New York practice: in the First Department, a criminal defendant’s filing of a CPL 250.10 notice is enough to waive CPLR 4504 and 4507 confidentiality privileges as to relevant medical/psychiatric records sought in a related civil case, even before the defendant actually presents psychiatric evidence at trial. The decision harmonizes privilege doctrine with CPL 250.10’s legislative function and the realities of automatic, accelerated discovery under CPL article 245, while clarifying that waiver analysis turns on whether the mental condition has been put in issue—not on whether records have already been aired in open court.