Waters v. East Nassau Medical Group

92 A.D.2d 893, 460 N.Y.S.2d 98, 1983 N.Y. App. Div. LEXIS 17285

Opinion

— In a medical malpractice action, plaintiffs appeal from an order of the Supreme Court, Nassau County (Robbins, J.), dated September 27, 1982, which granted the motion of Dr. Waterhouse, a nonparty witness, to quash a subpoena. Order reversed, on the law, with $50 costs and disbursements, and motion to quash denied. The subpoena issued to the nonparty witness, a doctor, was improperly quashed. The doctor, as a treating physician, may be questioned with regard to his factual observations, rather than in his potential capacity as an expert. If plaintiffs do attempt to ask questions of this witness in his capacity as an expert, objections can be made at the appropriate time. It is premature, based upon this record, to conclude that the subpoena was improperly issued in the first instance. Mollen, P. J., Damiani, Thompson and Gulotta, JJ., concur.