Tannenbaum v. Tenenbaum

8 A.D.3d 360, 777 N.Y.S.2d 769, 2004 N.Y. App. Div. LEXIS 7797

Opinion

In an action to recover damages for medical malpractice and wrongful death, the defendant appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated August 27, 2003, which granted the plaintiffs motion for a protective order pursuant to CFLR 3103 quashing his subpoena of a nonparty treating physician.

Ordered that the order is affirmed, with costs.

A party seeking discovery from a nonparty witness must show special circumstances (see Lanzello v Lakritz, 287 AD2d 601 [2001]; Dioguardi v St. John’s Riverside Hosp., 144 AD2d 333, 334 [1988]). The existence of such special circumstances is not established merely upon a showing that the information sought is relevant. Rather, special circumstances are shown by establishing that the information sought cannot be obtained through other sources (see Murphy v Macarthur Holding B., 269 AD2d 507 [2000]). The Supreme Court properly determined that the defendant did not show special circumstances. Therefore, the Supreme Court properly granted the plaintiffs motion for a protective order pursuant to CPLR 3103 quashing the defendant’s subpoena of a nonparty treating physician. Altman, J.P., S. Miller, Schmidt, Cozier and Skelos, JJ., concur.