Goldsmith v. Howmedica, Inc.

158 A.D.2d 335, 551 N.Y.S.2d 23, 1990 N.Y. App. Div. LEXIS 1375

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1990
• Status: Published

Opinion

A party may not obtain further disclosure after the filing of a note of issue and certificate of readiness absent a factual showing of " 'special, unusual or extraordinary circumstances’ ”. (Huttner v Mayberry, 96 AD2d 527; 22 NYCRR 202.21 [d].) Defendant’s note of issue was filed on July 31, 1989, 4Vi months after plaintiffs served their supplemental bill of particulars upon defendant. We find that defendant has failed to make the requisite showing of special circumstances and, therefore, deny defendant’s request to have a second medical expert examine the prosthesis.

Similarly, defendant has failed to make a showing of special circumstances in support of its request to depose the doctor. While he was the surgeon who implanted the original prosthesis in 1973, defendant has failed to show any relevancy or materiality of the doctor’s deposition to the issues raised in the supplemental bill of particulars. Defendant’s rationale for its request, i.e., that the deposition will be offered in lieu of the doctor’s personal appearance so as to avoid delays at trial, is lacking in logic in that defendant has not even made an assertion that the doctor will be unavailable to testify at trial. Concur—Murphy, P. J., Sullivan, Ross, Asch and Smith, JJ.