Stoller v. Moo Young Jun

118 A.D.2d 637, 499 N.Y.S.2d 790, 1986 N.Y. App. Div. LEXIS 54496

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1986
• Status: Published

Opinion

— In a medical malpractice action to recover damages for personal injuries, etc., the defendants Moo Young Jun and Eric I. Saltzman appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Pino, J.), dated July 30, 1984, as denied their motion for a further examination before trial of nonparty witness Harvey Stoller, and for leave to interview a Dr. Hugh Biller.

Appeal from so much of the order as denied that branch of the motion which was for a further examination before trial of nonparty witness Harvey Stoller dismissed. Insofar as it seeks review of that portion of the order, the appeal is in the nature of an appeal from an order on an application to review objections raised at an examination before trial, and such an order is not appealable as a matter of right (see, Sainz v New York City Health & Hosps. Corp., 106 AD2d 500).

Order affirmed insofar as it denied that branch of the motion which was for leave to interview Dr. Hugh Biller.

The plaintiffs are awarded one bill of costs.

Special Term correctly held that the appellants are not entitled to conduct an unauthorized (i.e., without the plaintiffs’ consent) private interview with Dr. Hugh Biller, a non-party treating physician; they are limited to the discovery devices prescribed in CPLR article 31 (see, Anker v Brodnitz, 98 Misc 2d 148, affd 73 AD2d 589 on opn of Justice Boyers at Special Term, appeal dismissed 51 NY2d 743). Lazer, J. P., Thompson, Weinstein and Eiber, JJ., concur.