Opinion
2003-01297
Submitted May 21, 2003.
July 28, 2003.
In an action to recover damages for dental malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated January 17, 2003, as granted that branch of the defendant's motion which was to compel production of all medical and hospital records of the injured plaintiff maintained by "Dr. Gessman, Dr. Joseph McGinn, Dr. Snyder, Dr. Tijani, Dr. Mookuen Lee, Seaview Radiology, HIP, Staten Island University Hospital South, and St. Vincent's Medical Center."
Lutfy Santora, Staten Island, N.Y. (James L. Lutfy of counsel), for appellants.
Amabile Erman, P.C., Staten Island, N.Y. (Stephanie M. Berger of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was to compel production of all medical and hospital records of the injured plaintiff maintained by "Dr. Gessman, Dr. Joseph McGinn, Dr. Snyder, Dr. Tijani, Dr. Mookuen Lee, Seaview Radiology, HIP, Staten Island University Hospital South, and St. Vincent's Medical Center" is denied.
By commencing this action for dental malpractice, the injured plaintiff waived the privilege of confidentiality pursuant to CPLR 4504 with respect to his relevant past dental history ( see CPLR 3121[a]; Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456-457; Hoenig v. Westphal, 52 N.Y.2d 605, 608; Prink v. Rockefeller Ctr., 48 N.Y.2d 309; Koump v. Smith, 25 N.Y.2d 287). However, a party does not waive the privilege with respect to unrelated illnesses or treatments ( see Cottrell v. Weinstein, 270 A.D.2d 449; Kohn v. Fisch, 262 A.D.2d 535; Sacicario v. Stylebuilt Accessories, 250 A.D.2d 830; Zappi v. Pedigree Ski Shop, 244 A.D.2d 331) . In this case, the defendant failed to establish that the medical records that he sought to discover were material and necessary to the defense of this dental malpractice action ( see CPLR 3101[a]; DeStrange v. Lind, 277 A.D.2d 344; King v. Salvation Army, 240 A.D.2d 473; Manley v. New York City Hous. Auth., 190 A.D.2d 600) . Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the defendant's motion which was to compel production of certain medical records unrelated to the physical condition in controversy.
SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.