Spano v. Geller

145 A.D.2d 623

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1988
• Status: Published

Opinion

— In a medical malpractice action, the defendants Geller and Primis appeal from an order of the Supreme Court, Nassau County (DiPaola, J.), entered July 13, 1987, which granted the plaintiff’s motion to vacate a judicial subpoena duces tecum and notice to take a deposition served upon a nonparty witness.

Ordered that the order is affirmed, with costs.

The Supreme Court properly vacated the deposition notice and subpoena served on Dr. Cilento, a nonparty witness, by the defendants Geller and Primis. Dr. Cilento became the plaintiff’s treating physician after she came to him suffering from an extreme case of Cushing’s disease, allegedly caused by the defendants’ improper prescription of a certain cortisone drug. Since Dr. Cilento is expected to testify at trial as the plaintiff’s expert, and has submitted a comprehensive medical report which, together with other medical information, has been freely exchanged by the plaintiff, the pretrial deposition sought by the appellants must be deemed unnecessary and coercive. Thompson, J. P., Lawrence, Rubin, Harwood and Balletta, JJ., concur.