Michalak v. Venticinque

Appellate Division of the Supreme Court of New York

Michalak v. Venticinque

222 A.D.2d 1060, 635 N.Y.S.2d 875, 1995 N.Y. App. Div. LEXIS 14119

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 22, 1995

StatusPublished

Cited by3 cases

This text of 222 A.D.2d 1060 (Michalak v. Venticinque) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Michalak v. Venticinque, 222 A.D.2d 1060, 635 N.Y.S.2d 875, 1995 N.Y. App. Div. LEXIS 14119 (N.Y. Ct. App. 1995).

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Opinion

—Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying plaintiff’s motion for a protective order precluding the deposition of Dr. Bartz (see, CPLR 3103). "[A] defendant in a personal injury action may [not], as of right, depose any and all physicians who are shown to have treated the injuries claimed by the plaintiff” (Dioguardi v St. John’s Riverside Hosp., 144 AD2d 333, 334). Further, a party seeking discovery from a non-party expert witness must show "special circumstances” (CPLR 3101 [d] [1] [iii]). Allegations [1061]*1061that the information sought is relevant and material are insufficient (Cirale v 80 Pine St. Corp., 35 NY2d 113, 116-117). It must also be shown that the information sought "cannot be discovered from other sources or otherwise is necessary to prepare for trial [citation omitted]” (King v State Farm Mut. Auto. Ins. Co., 198 AD2d 748; see, Dioguardi v St. John’s Riverside Hosp., supra, at 334). Dr. Bartz supplied defendants with a letter and sworn statement chronicling his treatment of plaintiff, including the date of each treatment and plaintiff’s physical complaints. Defendants failed to show that the deposition of Dr. Bartz might yield information material to the issue of damages that is not otherwise available. (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Protective Order.) Present — Denman, P. J., Green, Fallon, Doerr and Boehm, JJ.

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—Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying plaintiff’s motion for a protective order precluding the deposition of Dr. Bartz (see, CPLR 3103). "[A] defendant in a personal injury action may [not], as of right, depose any and all physicians who are shown to have treated the injuries claimed by the plaintiff” (Dioguardi v St. John’s Riverside Hosp., 144 AD2d 333, 334). Further, a party seeking discovery from a non-party expert witness must show "special circumstances” (CPLR 3101 [d] [1] [iii]). Allegations [1061]*1061that the information sought is relevant and material are insufficient (Cirale v 80 Pine St. Corp., 35 NY2d 113, 116-117). It must also be shown that the information sought "cannot be discovered from other sources or otherwise is necessary to prepare for trial [citation omitted]” (King v State Farm Mut. Auto. Ins. Co., 198 AD2d 748; see, Dioguardi v St. John’s Riverside Hosp., supra, at 334). Dr. Bartz supplied defendants with a letter and sworn statement chronicling his treatment of plaintiff, including the date of each treatment and plaintiff’s physical complaints. Defendants failed to show that the deposition of Dr. Bartz might yield information material to the issue of damages that is not otherwise available. (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Protective Order.) Present — Denman, P. J., Green, Fallon, Doerr and Boehm, JJ.

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Bluebook (online)

222 A.D.2d 1060, 635 N.Y.S.2d 875, 1995 N.Y. App. Div. LEXIS 14119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michalak-v-venticinque-nyappdiv-1995.

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