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Supreme Court, Appellate Division, Fourth Department, New York.

Angela ALEXANDER, Individually and as Mother and Natural Guardian of Asha Alexander, an Infant, Plaintiff-Appellant, v. WESTMINSTER PRESBYTERIAN CHURCH, Montgomery Neighborhood Center, Inc., County of Monroe and Monroe County Department of Social Services, Defendants-Respondents.

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and SCUDDER, JJ. Jessamine I. Jackson, for Plaintiff-Appellant. Valerie L. Barbic, for Defendants-Respondents.

Plaintiff commenced this action seeking damages for injuries resulting from her daughter's exposure to lead paint.   Supreme Court erred in permitting discovery of the academic records of plaintiff's other children.   Plaintiff alleges in the complaint that her daughter sustained neurological damage as a result of the exposure.   Defendants failed to make any factual showing that the requested materials, which are “of a confidential and private nature” (McGuane v. M.C.A., Inc., 182 A.D.2d 1081, 1082, 583 N.Y.S.2d 73;  see, Family Educational Rights and Privacy Act of 1974, 20 USC § 1232g), are relevant and material to that issue (see, Monica W. v. Milevoi, 252 A.D.2d 260, 262, 685 N.Y.S.2d 231;  McGuane v. M.C.A., Inc., supra, at 1081, 583 N.Y.S.2d 73).   Defendants' reliance upon Wepy v. Shen, 175 A.D.2d 124, 571 N.Y.S.2d 817, and Baldwin v. Franklin Gen. Hosp., 151 A.D.2d 532, 542 N.Y.S.2d 667, is misplaced;  in those case the siblings shared the infant plaintiff's neurological condition.   Plaintiff's remaining contentions have been rendered moot (see, Matter of Franklin, 215 A.D.2d 759, 627 N.Y.S.2d 963).   We therefore modify the order by vacating the fourth ordering paragraph.

Order unanimously modified on the law and as modified affirmed without costs.


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