Fortgang v. Alpert

256 A.D. 949, 10 N.Y.S.2d 291, 1939 N.Y. App. Div. LEXIS 5591

Opinion

Action by a physician to recover from defendant for services rendered to defendant and to defendant’s deceased daughter. Order, made on reargument, denying defendant’s motion to modify the notice of examination before trial, modified by striking out item 10 from the notice, and, as thus modified, affirmed, without costs; the examination to proceed on five days’ notice. Appeal from the original order dismissed, without costs. Item 10 in the notice of examination is in general terms vague and likely to cause confusion. Items 7 and 8 are proper for the reason that defendant has waived the privilege of secrecy. (Civ. Prac. Act, § 354; Clifford v. Denver & R. G. R. R. Co., 188 N. Y. 349.) Defendant is not privileged as to matters demanded by items 2 and 3 in the notice, as it does not appear that defendant is a personal representative. Furthermore, if defendant is such representative the privilege has been waived. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.