Capati v. Crunch Fitness International, Inc.

295 A.D.2d 181, 743 N.Y.S.2d 474, 2002 N.Y. App. Div. LEXIS 6139

Opinions

—Order, Supreme Court, New York County (Edward Lehner, J.), entered August 20, 2001, which granted plaintiffs motion to quash defendant-appellant’s subpoenas to take the depositions of three nonparty treating physicians, reversed, on the law, without costs, and the motion denied.

Defendant-appellant manufactures a dietary supplement that plaintiffs decedent allegedly had been taking at the time of her sudden death, which plaintiff attributes in part to one of the supplement’s ingredients. No autopsy was performed, and the cause of death is not established by the records of decedent’s medical treatment or by her death certificate. Under these circumstances, the subpoenas defendant-appellant issued for the depositions of three nonparty physicians who treated plaintiffs decedent should not have been quashed, since the testimony of these physicians is “material and necessary in the prosecution or defense” of this action, and may furnish information not available from the medical records (see, CPLR 3101 [a]; Schroder v Consolidated Edison Co., 249 AD2d 69). Concur—Nardelli, J.P., Sullivan and Friedman, JJ.