Davidian v. County of Nassau

152 A.D.2d 617, 543 N.Y.S.2d 720, 1989 N.Y. App. Div. LEXIS 9603

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1989
• Status: Published

Opinion

—In an action to recover damages for personal injuries based upon medical malpractice, the defendant Lewis Rosenberg appeals from an order of the Supreme Court, Nassau County (Yachnin, J.), dated March 30, 1988, which granted the plaintiffs’ application for a protective order vacating a judicial subpoena and notice to take the deposition of a nonparty witness.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court that the defendant Rosenberg failed to establish any reasonable excuse whatsoever for the lengthy delay in seeking to depose the nonparty witness, much less the "good cause” or "unusual or unanticipated circumstances developing] subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice” (22 NYCRR 202.21 [d], [e]). At the latest, the defendant learned of the presence of the nonparty witness John Davidian at the labor and delivery of his wife, the plaintiff Ann Davidian, upon the latter’s deposition in December 1985. The note of issue and certificate of readiness were filed on November 12, 1986. Nevertheless, the appellant did not seek to depose John Davidian until February 1988, more than two years later. Mollen, P. J., Bracken, Rubin, Sullivan and Rosenblatt, JJ., concur.