Melendez v. Roman Catholic Archdiocese

277 A.D.2d 64, 717 N.Y.S.2d 518, 2000 N.Y. App. Div. LEXIS 11968

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered January 6, 2000, which denied defendants’ motion to compel plaintiffs treating psychologist, who will also be plaintiffs expert witness at trial, to appear for examination before trial, unanimously affirmed, without costs.

Under CPLR 3101 (d) (1) (iii), defendants must show “special circumstances” in support of their demand to depose plaintiffs psychologist, who will also be plaintiffs expert witness at trial, especially since her report has provided them with a clear idea of what the nature of her testimony will be, including her opinion as to the extent of plaintiffs psychological damages and her diagnosis (see, Weinberger v Lensclean Inc., 198 AD2d 58). Defendants fail to make any such showing. Their belated assertions regarding the deficiency of the papers turned over by the psychologist are patently insufficient (see, King Elecs. v American Natl. Fire Ins. Co., 232 AD2d 273). Concur — Mazzarelli, J. P., Lerner, Rubin, Buckley and Friedman, JJ.