Opinion
September 21, 1984
Appeal from the Supreme Court, Erie County, Cook, J.
Present — Dillon, P.J., Doerr, Green, Moule and Schnepp, JJ.
Order unanimously reversed, without costs, and defendant Bifulco's motion granted. Memorandum: This is a personal injury action in which defendant Bifulco appeals from an order denying his motion to compel plaintiff to execute authorizations permitting defendant to obtain copies of the medical records of plaintiff's treating podiatrist.
Our view of the discoverability of a treating physician's medical records, as opposed to his reports, has differed from the views expressed by the other Departments (see Montag v Young Men's Christian Assn., 96 A.D.2d 721; cf. Rodriguez v Ryder Truck Rental, 100 A.D.2d 811; Pizzo v Bunora, 89 A.D.2d 1013; Ryan v Haskell, 86 A.D.2d 935). Since our decision in Montag v Young Men's Christian Assn. ( supra), however, the Court of Appeals has made it clear that where, as here, a party's physical condition is at issue, CPLR 3101 ordinarily requires disclosure of medical records as well as reports ( Cynthia B. v New Rochelle Hosp. Med. Center, 60 N.Y.2d 452). Our decision in Montag, therefore, should no longer be applied in this Department.