Aufrichtig v. Lowell

—Order, Supreme Court, Queens County (James O’Donoghue, J.), entered on or about February 10, 1992, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

While defendant physician’s cavalier attitude in providing admittedly careless and contradictory testimony, called "negligent testimony”, which he seeks to blame on the representations allegedly made to him by counsel for both sides, is hardly commendable, no action lies against him for breach of plaintiff patient’s confidentiality (see, Tiborsky v Martorella, 188 AD2d 795, 796-797), plaintiffs having waived confidentiality by affirmatively placing the insured patient’s medical condition in issue in seeking to enjoin the reduction of insurance benefits (see, Dillenbeck v Hess, 73 NY2d 278, 287).

We have considered plaintiffs’ other contentions and find them to be without merit. Concur — Rosenberger, J. P., Kupferman, Rubin and Williams, JJ.