Opinion
2003-05344.
Decided June 7, 2004.
In an action to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Richmond County (Gigante, J.), dated May 12, 2003, which denied his motion to dismiss the complaint pursuant to CPLR 3126 for failure to comply with certain discovery demands, or in the alternative, to compel the plaintiffs to provide all outstanding discovery.
Amabile Erman, P.C., Staten Island, N.Y. (Stephanie Berger and Marc J. Falcone of counsel), for appellant.
Before: SONDRA MILLER, J.P., THOMAS A. ADAMS, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
CPLR 3101(a) provides for disclosure of "all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." By commencing this action to recover damages for medical malpractice, the plaintiff Robert Gill waived the physician-patient privilege with respect to his relevant past medical history ( see Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456-457; McLane v. Damiano, 307 A.D.2d 338; De Strange v. Lind, 277 A.D.2d 344). However, a party does not waive the privilege with respect to unrelated illnesses or treatments ( see McLane v. Damiano, supra; Sadicario v. Stylebuilt Accessories, Inc., 250 A.D.2d 830, 831). In this case, the defendant failed to establish that the medical records he sought to discover were material and necessary to the defense of this malpractice action ( see McLane v. Damiano, supra). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion.
S. MILLER, J.P., ADAMS, COZIER and RIVERA, JJ., concur.