Forray v. New York Hospital

61 A.D.2d 770, 402 N.Y.S.2d 198, 1978 N.Y. App. Div. LEXIS 10171

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 1978
• Status: Published

Opinion

Supreme Court, New York County, entered January 21,1977, directing plaintiff to serve written interrogatories on defendant Harry Brown, is unanimously modified, on the law, without costs and without disbursements, by directing plaintiff to serve defendant Brown with written questions pursuant to CPLR 3108, deleting the reference to interrogatories pursuant to CPLR 3130, and as so modified, the order is affirmed. Respondent, an anesthesiologist, one of several defendants in this action to recover damages for personal injuries for negligence and malpractice, presently resides and is engaged in active medical practice in California. Pursuant to respondent’s motion, Special Term directed plaintiff to serve written interrogatories on him pursuant to CPLR 3130. Although we agree that CPLR 3130 does not permit written interrogatories in actions to recover damages for personal injuries resulting from negligence, nonetheless CPLR 3108 allows out-of-State examinations on written questions and examinations on open commissions. Obviously, the reference in the order to CPLR 3130 was an inadvertence; the record does show that respondent is the type of litigant CPLR 3108 was designed to serve. It appears respondent’s participation in the surgical procedure was insignificant, and travel to New York at this time would result in hardship to him and his family in that he would incur considerable expense and lose substantial income. Under the circumstances use of written questions pursuant to CPLR 3108 appears warranted. (Rochester v Bergen, 263 App Div 733.) Concur—Lupiano, J. P., Birns, Evans, Lane and Sullivan, JJ.