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MANKO v. REES

228 A.D.2d 420 (1996)

643 N.Y.S.2d 229

Nella Manko, Appellant, v. Thomas D. Rees, Respondent

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 3, 1996

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

We agree with the Supreme Court that the defendant has not waived his physician-patient privilege, since he has not affirmatively asserted his osteoarthritis condition either by way of counterclaim or to excuse the conduct complained of by the plaintiff. Accordingly, the medical records sought by the plaintiff are not subject to disclosure (see, Dillenbeck v Hess,

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