Appellant driver's deposition testimony regarding her ingestion of prescription medication just before she was served alcohol by defendant-respondent, in conjunction with appellants' cross claim for indemnification, constitutes an affirmative assertion of her medical condition ( see, Koump v. Smith, 25 N.Y.2d 287, 294-295), and a waiver of any doctor-patient privilege concerning the medical and prescription records sought by respondent ( see, Dillenbeck v. Hess, 73 N.Y.2d 278, 287).
Concur — Sullivan, J.P., Milonas, Nardelli, Williams and Mazzarelli, JJ.