Fernandez v. St. John's Episcopal Hospital

70 A.D.2d 627 | N.Y. App. Div. | 1979

— In a medical malpractice action, the defendant appeals from an order of the Supreme Court, Queens County, dated January 2, 1979, which, inter alia, denied its application to open its default in opposing plaintiff’s motion to examine it before trial and denied its motion for a protective order, with leave to renew on proper papers, including a copy of the notice of discovery and inspection. Order reversed, without costs or disbursements, defendant’s application to open its default granted, and matter remitted to Special Term to determine the plaintiffs motion for an examination before trial, upon consideration of defendant’s opposition thereto, and defendant’s motion for a protective order vacating plaintiffs notice of discovery and inspection. Defendant’s time to serve an affidavit in opposition is extended until 20 days after service upon it of a copy of the order to be entered hereon, together with notice of entry thereof. The record shows that the defendant’s default in opposing the plaintiffs motion to examine it before trial was not intentional but occurred during a period when the substitution of attorneys for defendant was being effected. The plaintiff in the first instance selected the witnesses by whom she seeks to examine the defendant hospital, none of whom is a party to this action. Ordinarily a corporation has the right to select the officers or employees by whom it is to be examined, and absent compelling circumstances it was error to permit the plaintiff to select such persons (see Resort Bus Lines v Port Auth. of N. Y. & N. J., 52 AD2d 596; Besen v C. P. Y. Yacht Sales, 34 AD2d 789). Also, the papers do not show which, if any, of the persons sought to be examined are employees of the defendant hospital. The defendant should be permitted, in the interest of justice, to oppose the plaintiffs motion. Titone, J. P., Suozzi and Cohalan, JJ., concur; Shapiro, J., dissents and votes to affirm the order.