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DILLENBECK v. HESS

73 N.Y.2d 278 (1989)

Donald R. Dillenbeck, as Administrator of The Estate of Tonia R. Dillenbeck, Deceased, et al., Appellants, v. Sherry L. Hess et al., Respondents.

Court of Appeals of the State of New York.

Decided February 23, 1989.

Attorney(s) appearing for the Case

Maurice P. O'Brien for appellants.

Timothy J. Perry for Sherry L. Hess, respondent.

Kelly E. Fischer for Edward A. Carle and another, respondents.

Judges SIMONS, TITONE and HANCOCK, JR., concur with Judge ALEXANDER; Judge BELLACOSA dissents and votes to reverse in a separate opinion in which Chief Judge WACHTLER and Judge KAYE concur.

ALEXANDER, J.

In Koump v Smith (25 N.Y.2d 287), we noted that a litigant does not waive the physician-patient privilege merely by defending a personal injury action in which his or her mental or physical condition is in controversy unless, in so defending, the litigant "affirmatively asserts the condition either by way of counterclaim or to excuse the conduct complained...

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