Blair v. Kelly (68 A.D.3d 1814, 2009)

Memorandum: Defendants appeal from an order that, inter alia, granted that part of plaintiffs motion to compel disclosure of certain medical records of Joseph R. Kelly (decedent). Although we agree with plaintiff that decedent’s medical condition at the time of the accident is “ ‘in controversy’ within the meaning of CPLR 3121 (a)” (Dillenbeck v Hess, 73 NY2d 278, 286 [1989]; see also Koump v Smith, 25 NY2d 287 [1969]), we further conclude that those records are exempt from disclosure inasmuch as defendant Donna S. Kelly, as executrix of decedent’s estate, did not waive the physician-patient privilege “either by way of counterclaim or as a defense to the plaintiffs claim” (Koump, 25 NY2d at 295; see Dillenbeck, 73 NY2d at 278). We therefore reverse the order. Present — Scudder, EJ., Hurlbutt, Smith and Centra, JJ.