Farrell v. McIntosh

—In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Santucci, J.), dated January 23, 1991, which denied his motion to compel production of *410medical and psychiatric records of the respondent Joan McIntosh, and allowed Joan McIntosh to amend her answer by deleting the affirmative defense of "mental incapacity/insanity”, and (2) so much of an order of the same court, dated January 2, 1992, as denied his motion for renewal of the motion to compel disclosure of the requested psychiatric records.

Ordered that the order dated January 23, 1991, is affirmed, and the order dated January 2, 1992, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.

We agree with the Supreme Court’s conclusion that the respondent Joan McIntosh did not waive the physician-patient privilege with respect to the psychiatric records requested by the appellant (see, Dillenbeck v Hess, 73 NY2d 278; Koump v Smith, 25 NY2d 287).

We have considered the appellant’s remaining contentions and find them to be without merit. Bracken, J. P., Balletta, Ritter and Copertino, JJ., concur.