Forgays v. Merola

222 A.D.2d 1088, 636 N.Y.S.2d 509, 1995 N.Y. App. Div. LEXIS 14167

Opinion

—Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of plaintiff to renew her prior motion to compel defendant A. John Merola, M.D., to attend a further deposition and answer inquiries regarding the comparison of two electrocardiogram tests performed on plaintiff’s decedent in January 1991. The questions did not relate solely to the negligence of another physician (see, Carvalho v New Rochelle Hosp., 53 AD2d 635; see also, Harley v Catholic Med. Ctr., 57 AD2d 827) and were relevant to plaintiff’s contention that the death of plaintiff’s decedent was the result of defendants’ negligent failure to treat and care for plaintiff’s decedent adequately (see, Conrad v Park, 204 AD2d 1011). We, therefore, grant the motion to compel.

The appeal by plaintiff from the order denying her motion to limit Dr. Merola’s trial testimony is based upon the court’s denial of her motion to compel. Because we have granted the motion to compel, the appeal from that order is moot (see, e.g., Jones v Park Realty [appeal No. 1], 168 AD2d 945). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.— Discovery.) Present — Green, J. P., Pine, Fallon, Callahan and Doerr, JJ.