Maurice v. Mahon

Order, Supreme Court, New York County (Norman Ryp, J.), entered on or about June 28, 1996, which granted defendant-respondent’s motion to compel defendants-appellants’ production of certain medical records, and denied appellants’ cross motion for an order of protection, unanimously affirmed, without costs.

Appellant driver’s deposition testimony regarding her ingestion of prescription medication just before she was served alcohol by defendant-respondent, in conjunction with appellants’ cross claim for indemnification, constitutes an affirmative assertion of her medical condition (see, Koump v Smith, 25 NY2d 287, 294-295), and a waiver of any doctor-patient privilege concerning the medical and prescription records sought by respondent (see, Dillenbeck v Hess, 73 NY2d 278, 287). Concur— Sullivan, J. P., Milonas, Nardelli, Williams and Mazzarelli, JJ.