Volkman v. Miller

Greenblott, J. (dissenting).

We respectfully dissent from the majority opinion. While we agree that the present action is properly one for declaratory judgment, we do not believe that the complaint should be dismissed or that the system should be declared constitutional.

*150The majority grant the defendants’ motion for summary judgment dismissing the complaint and hold that the challenged system is constitutional. They have apparently done so on the ground that the plaintiffs’ affidavit in opposition lacks sufficient "factual support”, and from conclusions drawn "from the evidentiary matter submitted” by the defendant. The majority condemns the affidavit of the plaintiffs’ attorney submitted in opposition to the motion for a lack of factual support, notwithstanding the plaintiffs’ claim that the facts necessary to justify opposition exist within the exclusive control of the defendants (see CPLR 3212, subd [f]). The majority then proceed, apparently on the basis of the defendants’ evidence, to rule the system constitutional. There has been no discovery in this case and the factual record before this court is very sparse.

If it is assumed that there are facts sufficient to oppose summary judgment within the exclusive control of the movants, it is not at all clear how the plaintiffs could provide the "factual support” required by the majority. Admittedly, the statute requires the party opposing summary judgment to convince the court that these facts may exist (CPLR 3212, subd [f]), but, it is equally clear that summary judgment must be denied when "the facts presented in the pleadings or on a pretrial motion are not sufficient to permit a declaration for either party” (Armstrong v County of Onondaga, Onondaga County Water Dist, 31 AD2d 735, 736; 3 Weinstein-KornMiller, NY Civ Prac, par 3001.13). While the plaintiffs’ attorney should have obtained affidavits from the parties personally rather than submitting one based on his own information and belief, it does not appear that any plaintiffs’ affidavit could have added any significant factual support in opposition to this motion. If discovery is allowed, as requested by the plaintiffs, it would soon become apparent whether these facts exist and a "just, speedy and inexpensive determination” could be secured (CPLR 104).

It is clear that the key to summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Yourth v Boggs, 33 AD2d 549). The majority, however, conclude "from evidentiary matter submitted” by the defendants, that the cause of action is without merit. In addition to issue determination, this result gives conclusive weight to the defendants’ affidavits before the plaintiffs have been allowed discovery. It would be an unques*151tionable denial of justice to force the plaintiffs to wait until a leak in the allegedly confidential system costs them their jobs or worse, or to dissuade a potential patient from seeking needed psychiatric counseling for fear of this computerized system, merely to afford them a factual basis on which to oppose summary judgment. In the interests of justice the motion for summary judgment should be denied, without prejudice to the defendants raising the question anew after discovery has been completed (Beach v Fresht Props. Corp., 35 AD2d 1041; Rosenthal v Manufacturers Hanover Trust Co., 30 AD2d 650).

We also dissent from the holding of the majority that the challenged system is constitutional. There are insufficient facts contained in the instant record to determine whether the challenged system would pass constitutional muster. It is impossible at the very outset to determine whether the right of privacy has been infringed upon. A critical factual issue in this regard is whether the plaintiffs’ decision-making in their personal life (seeking psychiatric treatment) is affected by the challenged system (Matter of Schulman v New York City-Health & Hosps. Corp., 38 NY2d 234, 243). There is no evidence in the record on this point other than the allegations in the plaintiffs’ complaint that their decision-making is being affected.

The majority cannot contend that the plaintiffs have failed to state a cause of action (Roe v Ingraham, 403 F Supp 931; see Matter of Schulman v New York City Health & Hosps. Corp., supra, p 241); nor can they claim that an order allowing discovery would be unprecedented or unreasonable (Roe v Ingraham, 364 F Supp 536, 546-547, revd on other grounds 480 F2d 102). The majority proceeds, however, to a declaration on the merits holding that the challenged system is constitutional. Such a holding and its res judicata effect deny these plaintiffs one of the most basic rights in our jurisprudence— their right to a day in court. Procedural inadequacies should not be held to prejudice those other citizens of the State who deserve the full protection of their Constitution.

The judgment should be reversed, and the case remitted for discovery.

Kane and Larkin, JJ., concur with Koreman, P. J.; Greenblott and Main, JJ., concur in part and dissent in part in an opinion by Greenblott, J.

*152Judgment modified, on the law, to the extent of directing judgment be entered in favor of defendants (1) declaring that the plaintiffs’ right of privacy, the patient-physician privilege, and the right of staff personnel to practice their profession have not been violated, and (2) that it is proper for defendants to keep identifying data and information concerning out-patients in a centralized computerized facility, and, as so modified, affirmed, without costs.