Hall v. Hall , 656 N.Y.S.2d 866 ( 1997 )

—Order, Supreme Court, Bronx County (Irene Duffy, J.), entered August 21, 1996, which, in an action for divorce alleging that defendant intentionally or negligently infected plaintiff with genital herpes, granted in part and denied in part plaintiffs motion for various relief, unanimously modified, on the law and facts, to direct defendant to provide medical authorizations and submit to a physical examination, and otherwise affirmed, without costs.

The motion court properly exercised its broad discretion over disclosure in refusing plaintiffs request to place the case on the calendar prior to completion of disclosure, permitting plaintiff to serve a second set of interrogatories pertaining to certain financial matters, referring the propriety of those interrogatories to the Special Referee before whom issues of equitable distribution were already pending, and refusing to strike defendant’s answer. Defendant has complied with most of plaintiffs discovery requests and has not been willfully non-compliant with respect to the outstanding requests. We modify only to clarify that the motion court’s direction to defendant to comply with "those reasonable items of discovery due and necessary” should be understood to mean production of the requested medical authorizations and submission to a physical examination. Defendant consented to such disclosure as evidenced by a preliminary conference order, and, in any event, the physician-patient privilege cannot be raised for the first time on appeal (Matter of Rivera v Coughlin, 133 AD2d 694). Concur—Ellerin, J. P., Rubin, Williams and Tom, JJ.