Blair v Kelly

Blair v Kelly 2009 NY Slip Op 09928 [68 AD3d 1814] December 30, 2009 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Beverly A. Blair, Respondent, v Donna S. Kelly, as Executrix of Joseph R. Kelly, Deceased, et al., Appellants.

—[*1] Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of counsel), for defendants-appellants.

Burgett & Robbins, LLP, Jamestown (Lori L. Thierfeldt of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered February 18, 2009 in a personal injury action. The order, inter alia, directed the disclosure of certain medical records of Joseph R. Kelly.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.

Memorandum: Defendants appeal from an order that, inter alia, granted that part of plaintiff's 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 plaintiff's claim" (Koump, 25 NY2d at 295; see Dillenbeck, 73 NY2d at 278). We therefore reverse the order. Present—Scudder, P.J., Hurlbutt, Smith and Centra, JJ.