Burns v. Palazola

Oct 31, 2005
Versions:22 A.D.3d 779
803 N.Y.S.2d 169

In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated July 22, 2004, which granted the motion of the nonparty, Wayne R. Sebastiano, pursuant to CPLR 2304 and 3103, for a protective order quashing, vacating, and setting aside the plaintiff‘s notice of deposition and subpoena notice served upon him.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

An affidavit showing unusual or unanticipated circumstances justifying a departure from the general rule foreclosing discovery after the filing of a note of issue (see 22 NYCRR 202.21 [d]) was not required here since the relief sought, deposition of a nonparty treating physician of the plaintiff‘s decedent, was not in the nature of discovery (see CPLR 3101 [d] [1] [iii]; Jones v Sherpa, 5 AD3d 634 [2004]; Beliavskaia v Perkin, 227 AD2d 246 [1996]; Hill v Sheehan, 154 AD2d 912 [1989]). Therefore, the Supreme Court erred in granting the motion for a protective order.

The plaintiff‘s remaining contention is academic in light of our determination. Cozier, J.P., Ritter, Spolzino and Lunn, JJ., concur.