King Electronics of Graham Ave., Inc. v. American National Fire Insurance

232 A.D.2d 273, 648 N.Y.S.2d 302, 1996 N.Y. App. Div. LEXIS 10357

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1996
• Status: Published

Opinion

—Order, Supreme Court, New York County (Stuart Cohen, J.), entered December 6, 1995, which granted plaintiffs motion to compel the deposition of defendant’s expert witness, is unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion is denied.

Generally, the issue of whether discovery should be granted is a discretionary matter left within the purview of the Supreme Court (Hirschfeld v Hirschfeld, 69 NY2d 842, 844; Mead v Benjamin, 201 AD2d 796, 797). In the case before us, the IAS Court erred, and abused its discretion, as there were no " 'special circumstances’ ” which warranted the order compelling the deposition of defendant’s expert witness (Generali Ins. Co. v Honeywell, Inc., 194 AD2d 442; 232 Broadway Corp. v New York Prop. Ins. Underwriting Assn., 171 AD2d 861; Hawksby v New York Hosp., 162 AD2d 179, 181). Plaintiffs counsel’s assertions regarding the deficiencies of the expert’s report were patently insufficient to demonstrate the existence of special circumstances (Adams Light. Corp. v First Cent. Ins. Co., 230 AD2d 757). Concur—Rosenberger, J. P., Ellerin, Wallach, Tom and Andrias, JJ.