Opinion
April 28, 1995
Appeal from the Supreme Court, Erie County, Notaro, J.
Present — Pine, J.P., Lawton, Wesley, Callahan and Davis, JJ.
Order unanimously reversed on the law without costs, motion denied and cross motion granted. Memorandum: Supreme Court erred in granting plaintiffs' motion to compel disclosure of the medical records of a non-party developmentally disabled person in defendant's custody and in denying defendant's cross motion for a protective order. Defendant validly asserted the physician-patient privilege in response to the discovery demand, and plaintiffs failed to establish that the patient or anyone with authority to act on her behalf had waived it (see, Dillenbeck v Hess, 73 N.Y.2d 278, 289-290; Schenk v Devall, 205 A.D.2d 900; Schnobrich v Schnobrich, 198 A.D.2d 850).