Carlucci v. Brown

187 A.D.2d 693, 591 N.Y.S.2d 793, 1992 N.Y. App. Div. LEXIS 13415

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1992
• Status: Published

Opinion

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Burrows, J.), dated December 3, 1990, which denied their motion to compel the defendant to supply a response to their demand for expert witness information.

Ordered that the appeal is dismissed as academic, without costs or disbursements.

The plaintiffs’ application before the Supreme Court, was in essence, to compel the defendant to designate an expert medical witness and to provide a response to the plaintiffs’ outstanding notice of demand for expert witness information. The Supreme Court denied the motion, and the plaintiffs appealed.

The parties have informed this Court that in the 23 months which have elapsed since the order appealed from was made, the defendant has retained an expert witness and has responded to the plaintiffs’ demand for expert witness information. Accordingly, the relief sought by the plaintiffs has been rendered academic. Moreover, it appears that the trial of the instant action is not scheduled to take place for several months, thereby affording the plaintiffs ample time to review and consider the information provided. The plaintiffs may move before the Supreme Court to compel a further or more complete response if they are of the view that the defendant’s expert witness disclosure is lacking or incomplete. Thompson, J. P., Bracken, Pizzuto and Santucci, JJ., concur.