Daniels v. Armstrong

42 A.D.3d 558, 840 N.Y.S.2d 409

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 31, 2007
• Status: Published

Opinion

In an action to recover damages for medical malpractice and wrongful death, etc., the defendants Richard E. Armstrong, Richard E. Armstrong, M.D., EC., and St. Luke’s Cornwall Hospital appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated March 30, 2006, as denied their motion pursuant to CPLR 3101 (d) (2) to compel the plaintiff to disclose a certain report completed by a medical expert with whom she consulted.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the appellants’ motion to compel production of a report completed by a medical expert with whom the plaintiff consulted. The plaintiff established that the report was prepared solely in anticipation of litigation (see CPLR 3101 [d] [2]; Kephart v Burke, 306 AD2d 924, 925 [2003]; Santariga v McCann, 161 AD2d 320, 322 [1990]). Further, the appellants failed to establish that they had a substantial need for the report in the preparation of their case and could not, without undue hardship, obtain the substantial equivalent of the report by other means (see CPLR 3101 [d] [2]; Heimanson v Farkas, 292 AD2d 421, 422 [2002]; Martinez v KSM Holding, 294 AD2d 111, 111-112 [2002]; DeGourney v Mulzac, 287 AD2d 680 [2001]).

The appellants’ remaining contentions either are without merit or do not require reversal. Miller, J.E, Goldstein, Fisher and Covello, JJ., concur.