Brooks v. City of New York

• Decision Date: 24 August 1998
• Citation: 678 N.Y.S.2d 479,178 Misc.2d 104
• Parties: , 1998 N.Y. Slip Op. 98,513 William BROOKS, Plaintiff, v. CITY OF NEW YORK et al., Defendants.
• Court: New York Supreme Court

Page 479

678 N.Y.S.2d 479

178 Misc.2d 104, 1998 N.Y. Slip Op. 98,513

William BROOKS, Plaintiff, v. CITY OF NEW YORK et al., Defendants.

Supreme Court, New York County.

Aug. 24, 1998.

Proner & Proner, P.C., New York City (Tobi R. Salottolo of counsel), for plaintiff.

Wilner & Associates, P.C., New York City (Gregory J. Samurovich of counsel), for Columbia University, defendant.

RICHARD F. BRAUN, Justice.

This is a personal injury action. Plaintiff moves, pursuant to CPLR 3103 and 2304, to quash the subpoena of a non-party, Plaintiff's treating physician. Defendant Columbia University ("Defendant") cross-moves, pursuant to CPLR 3126, to strike Plaintiff's expert response for the physician.

Pursuant to CPLR 3101(d)(1)(iii), in order to obtain a court order permitting a deposition of an expert, "a showing of special circumstances" must be made. It is within the sound discretion of the court to which an application is made to determine whether any special circumstances have been shown (Brady v. Ottaway Newspapers, Inc., 63 N.Y.2d 1031, 1032, 484 N.Y.S.2d 798, 473 N.E.2d 1172 [1984] ). Defendant has not made such a demonstration. Glatzer v. Monarch Life Ins. Co., 40 A.D.2d 771, 337 N.Y.S.2d 343 (1st Dept.1972), cited by Defendant, is inapposite. That case was an insurance action. In this personal injury action, Defendant is seeking nothing special but rather seeks what could be sought by any defendant in this type of action: an opportunity to depose a plaintiff's treating doctor as to the plaintiff's injuries. Such a request is impermissible, absent the required showing of special circumstances (Weinberger v. Lensclean Inc., 198 A.D.2d 58, 59, 603 N.Y.S.2d 148 [1st Dept.1993] ).

Defendant is correct that a motion brought pursuant to CPLR 2304 must be made promptly. Promptly is interpreted to mean generally before the subpoena's return date (Matter of Brunswick Hosp. Ctr., Inc. v. Hynes, 52 N.Y.2d 333, 438 N.Y.S.2d 253, 420 N.E.2d 51 [1981] ). Plaintiff made his motion before then. Under the circumstances, Plaintiff's motion was timely.

Contrary to Defendant's contention, "returnable in a court", pursuant to CPLR 2304, is not the same thing as returnable in a courthouse. It means within a court action or proceeding. A request to withdraw a subpoena before bringing a motion to quash the subpoena only has to be made, pursuant to CPLR 2304, where the subpoena is not issued within a court action or proceeding. This requires the parties to attempt an amicable resolution before resorting to court where no action or proceeding is yet pending in court. According to the concurring Opinions in Anonymous v. Axelrod, 92 A.D.2d 789, 459 N.Y.S.2d 778 (1st Dept.1983), relied upon by Defendant, that action concerned a non-judicial subpoena issued by a State agency to appear before an agency, not a subpoena that was issued within a court action or proceeding. Thus, Anonymous v. Axelrod offers no support for Defendant's position. Therefore, Plai...