KOHN v. FISCH (1999)

In an action, inter alia, to recover damages for medical malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Rudolph, J.), dated June 30, 1998, as denied that branch of his motion which was to compel production of the injured plaintiff's psychiatric records.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 It is well settled that a party waives the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue (see, Cynthia B. v. New Rochelle Hosp. Med. Center, 60 N.Y.2d 452, 456-457, 470 N.Y.S.2d 122, 458 N.E.2d 363;  Prink v. Rockefeller Center, 48 N.Y.2d 309, 422 N.Y.S.2d 911, 398 N.E.2d 517;  Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857;  Zimmer v. Cathedral School of St. Mary & St. Paul, 204 A.D.2d 538, 539, 611 N.Y.S.2d 911).   However, a party does not waive the privilege with respect to unrelated illnesses or treatments (see, Sadicario v. Stylebuilt Accessories, 250 A.D.2d 830, 673 N.Y.S.2d 697;  Zappi v. Pedigree Ski Shop, 244 A.D.2d 331, 664 N.Y.S.2d 57).

 In the instant case, the Supreme Court properly determined that the injured plaintiff's psychiatric records were not subject to disclosure once the injured plaintiff withdrew his claims based upon psychological injuries (see, Strong v. Brookhaven Mem. Hosp. Med. Ctr., 240 A.D.2d 726, 659 N.Y.S.2d 104).

MEMORANDUM BY THE COURT.