Rivera v. City of New York

3 A.D.3d 486, 769 N.Y.S.2d 752

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 2004
• Status: Published

Opinion

In an action to recover damages for medical malpractice and wrongful death, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Eatterson, J.), dated July 12, 2002, as denied those branches of their motion which were for leave to conduct additional nonparty depositions of Thomas Galloway, Hazel Brett, and C. Smith and granted that branch of the defendants’ cross motion which was for a protective order against certain additional document discovery.

Ordered that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion which were for leave to conduct additional nonparty depositions of Thomas Galloway, Hazel Brett, and C. Smith and substituting therefor provisions granting those branches of the motion and providing that those depositions shall be held at a time and place to be set in a written notice at least 10 days prior to the depositions, to be provided by the plaintiffs to those witnesses, or at such time and place as the parties may agree; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

The plaintiffs made a showing of materiality or necessity as to the nonparty witnesses whom they seek to depose, and accordingly, the Supreme Court should have granted them leave to depose those witnesses (see Zollner v City of New York, 204 AD2d 626, 627 [1994]).

As for the plaintiffs’ document discovery demands, the Supreme Court properly determined that the material requested was privileged under Public Health Law § 2805-m (see Logue v Velez, 92 NY2d 13, 17 [1998]), or that the demands were over-broad (see Cabrera v Allstate Indem. Co., 288 AD2d 415 [2001]). Santucci, J.P., Krausman, Schmidt and Rivera, JJ., concur.