Opinion
December 23, 1994
Appeal from the Supreme Court, Onondaga County, Reagan, J.
Present — Green, J.P., Balio, Wesley, Callahan and Doerr, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied that part of defendants' motion seeking leave to renew. Defendants failed to establish that the purported "new" material was not in existence or was unavailable at the time the initial motion was made and to proffer a valid excuse for failing to submit that material in support of their initial motion (see, Lindsay v Funtime, Inc., 184 A.D.2d 1036; Foley v Roche, 68 A.D.2d 558, lv denied 56 N.Y.2d 507). Moreover, the "new" material was cumulative of other evidence considered by the court on the initial motion (see, Doe v Roe, 155 Misc.2d 392, 409-410) and by this Court on the prior appeal (see, Doe v Roe, 190 A.D.2d 463, lv dismissed 82 N.Y.2d 846), and would not have warranted a different result (see, Kirchoff v International Harvester Co., 138 A.D.2d 820, 821).
The court improvidently exercised its discretion, however, in denying that part of defendants' motion seeking leave to amend the answer to assert the Statute of Frauds as an affirmative defense to the cause of action for breach of an oral promise of confidentiality (see, General Obligations Law § 5-701 [a] [1]). The promise of a physician to maintain the confidentiality of a patient's HIV status extends indefinitely beyond the time that treatment is provided and continues until it is waived by the patient. Because the physician cannot waive the privilege, the promise is one that cannot be performed within a lifetime (see, Loe v Town of Thomaston, 600 A.2d 1090 [Me]; cf., Malamood v Kiamesha Concord, 182 A.D.2d 359). Thus, the court erred in concluding that the defense was without merit, and leave to amend should have been granted.