March 22, 1973
This is an appeal from so much of an order of the Court of Claims, entered July 25, 1972, as granted claimants' motion to compel the State to produce the medical records of claimants' assailant. This court in Mayer v. Albany Med. Center Hosp. ( 37 A.D.2d 1011) carefully distinguished between medical and nonmedical information contained in hospital records and stated that such nonmedical information contained therein was subject to disclosure. The attorney for the claimants, in his supporting affirmation, sought relief pursuant to the wording of our decision and the Attorney-General, in an affidavit agreed that claimants were entitled to examination of the hospital record "excepting therefrom entries regarding propensities, diagnosis and prognosis". The court, completely disregarding the relief requested, made an order for the State "to produce for examination the medical records" of the claimants' assailant. This was error and results in this useless appeal where the claimant requested that to which he is entitled and to which the State does not object as outlined by this court in Mayer ( supra). We would further note that even though the court erred in making its order, the attorneys for the parties could have by stipulation settled the alleged controversy because what the claimants seek is what the State is willing to give. For the benefit of the courts and attorneys we reiterate and reaffirm our decision in Mayer ( supra) where we clearly and succinctly in assault cases outlined what is nonmedical as found in a hospital record. The order should be modified, and disclosure granted in accordance with this opinion, and, as so modified, affirmed, without costs. Herlihy, P.J., Staley, Jr., Cooke, Kane and Main, JJ., concur. Order modified, and disclosure granted in accordance with this opinion, and, as so modified, affirmed, without costs.