Angela Alexander, Individually and as Mother and Natural Guardian of Asha Alexander, an Infant, Appellant, v. Westminster Presbyterian Church et al., Respondents

Angela Alexander, Individually and as Mother and Natural Guardian of Asha Alexander, an Infant, Appellant, v Westminster Presbyterian Church et al., Respondents. [702 NYS2d 727] [MAJORITY] —Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action seeking damages for injuries resulting from her daughter’s exposure to lead paint. Supreme Court erred in permitting discovery of the academic records of plaintiff’s other children. Plaintiff alleges in the complaint that her daughter sustained neurological damage as a result of the exposure. Defendants failed to make any factual showing that the requested materials, which are “of a confidential and private nature” (McGuane v M.C.A., Inc., 182 AD2d 1081, 1082; see, Family Educational Rights and Privacy Act of 1974, 20 USC § 1232g), are relevant and material to that issue (see, Monica W. v Milevoi, 252 AD2d 260, 262; Mc-Guane v M.C.A., Inc., supra, at 1081). Defendants’ reliance upon Wepy v Shen (175 AD2d 124) and Baldwin v Franklin Gen. Hosp. (151 AD2d 532) is misplaced; in those case the siblings shared the infant plaintiffs neurological condition. Plaintiffs remaining contentions have been rendered moot (see, Matter of Franklin, 215 AD2d 759). We therefore modify the order by vacating the fourth ordering paragraph. (Appeal from Order of Supreme Court, Monroe County, Affronti, J.— Discovery.) [MAJORITY] Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Scudder, JJ.