
    Nella Manko, Appellant, v Thomas D. Rees, Respondent.
    [643 NYS2d 229]
   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, 73 NY2d 278; Koump v Smith, 25 NY2d 287). Mangano, P. J., Thompson, Florio and McGinity, JJ., concur.  