WELTER v. FEIGENBAUM (2010)

Order, Supreme Court, New York County (Debra A. James, J.), entered March 18, 2009, which, to the extent appealed from, as limited by the briefs, granted plaintiff's cross motion to compel defendant to submit to a blood test, affirmed, without costs.

A plaintiff, in an action for negligent transmittal of genital herpes simplex II, may demand that the defendant submit to a blood test to determine if the latter indeed has the virus (see CPLR 3121). Since the test was ordered in conjunction with the litigation, it is not subject to the physician-patient privilege (see Connors, McKinney's CPLR Practice Commentary C3121:2). Even were the privilege to apply, defendant waived it by asserting the affirmative defense that he was asymptomatic (see e.g. Dillenbeck v. Hess, 73 N.Y.2d 278, 287-288 [1989] ). Defendant's effort to limit the scope of discovery has simply focused the issue on whether or not he has the virus. This issue is relevant to-and potentially dispositive of-the action. If the test is negative, the case will be subject to dismissal. If, on the other hand, it is positive, defendant will have an opportunity to prove his affirmative defenses that he did not have the virus in 2002, or was unaware that he had it or was asymptomatic at the time of alleged transmittal to plaintiff.

We write separately to emphasize that we express no view on the issue of whether, if the test is positive, it is admissible at trial (see People v. Scarola, 71 N.Y.2d 769, 777 [1988] [“(e)ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury”] ).

All concur except ANDRIAS and McGUIRE, JJ., who concur in a separate memorandum by McGUIRE, J. as follows: