Iseman v. Delmar Medical-Dental Building, Inc. , 495 N.Y.S.2d 747 ( 1985 )

Kane, J. P. (dissenting).

Although we agree with the majority’s finding that defendant Delmar Medical-Dental Building, Inc. (hereinafter defendant), is not foreclosed from contesting the order appealed from (see, Cherchio v Alley, 111 AD2d 541, 542; De Ronda v Greater Amsterdam School Dist., 91 AD2d 1088, 1090), in our opinion plaintiff Milla H. Iseman (hereinafter plaintiff) has waived her physician-patient privilege.

It is well settled that a person waives the physician-patient privilege when he puts his physical condition in controversy or voluntarily discloses or testifies to the details of his condition (Richardson, Evidence § 437, at 430-431 [Prince 10th ed]). In the instant case, defendant asserts that plaintiff’s eye condition contributed to her fall. In this regard, at an examination before trial, plaintiff testified that she suffered from glaucoma and that she put drops in her right eye on the morning prior to her fall. Defendant has submitted an attorney’s affidavit, pictures of the scene, the deposition of plaintiff and excerpts from a medical text. The above has substantiated and given credence to defendant’s claim so as to put plaintiff’s eye condition in controversy (see, Koump v Smith, 25 NY2d 287).

Additionally, we find that plaintiff waived her physician-patient privilege when she voluntarily testified about her glaucoma condition at the examination before trial (see, Richardson, Evidence § 438, at 431 [Prince 10th ed]; Fisch, New York Evidence § 553, at 370-371). Thus, a deposition of plaintiff’s ophthalmologist should be allowed since it is evidence which is material and necessary (see, Allen v Crowell-Collier Pub. Co., 21 NY2d 403).

We would therefore reverse Special Term’s order and deny plaintiffs’ motion.

Weiss and Yesawich, Jr., JJ., concur with Harvey, J.; Kane, J. P., and Levine, J., dissent and vote to reverse in an opinion by Kane, J. P.

Order affirmed, with costs.