ANDREW v. HURH (2006)

 On appeal from a judgment entered following a jury trial dismissing the medical malpractice complaint against Soo Hurh, M.D., Lynn Hickox, C.N.M., and Community General Hospital (collectively, defendants), plaintiff contends that Supreme Court erred in allowing the testimony of Dr. Anthony Scalzo and Dr. Richard Aubry.   Contrary to the contention of plaintiff, defendants were not required to provide plaintiff with CPLR 3101(d) expert disclosure concerning Scalzo, inasmuch as “a treating physician may give expert opinion testimony ․ and may do so without prior notice pursuant to CPLR 3101(d)” (Krinsky v. Rachleff, 276 A.D.2d 748, 750, 715 N.Y.S.2d 712;  see also Finger v. Brande, 306 A.D.2d 104, 762 N.Y.S.2d 50;  but see Thomas v. 14 Rollins St. Realty Corp., 25 A.D.3d 317, 807 N.Y.S.2d 56).   Contrary to the further contention of plaintiff, Scalzo's testimony was not speculative (see generally Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1, 159 N.E.2d 348, rearg. denied 6 N.Y.2d 882, 188 N.Y.S.2d 1027, 160 N.E.2d 96).

 Plaintiff further contends that the testimony of Scalzo should have been stricken because defense counsel conducted ex parte post-note of issue interviews with Scalzo, allegedly in violation of the Health Insurance Portability and Accountability Act of 1996.   By failing to raise that contention until the posttrial motion to set aside the verdict, plaintiff failed to preserve it for our review (see Wooten v. State of New York, 302 A.D.2d 70, 72, 753 N.Y.S.2d 266, lv. denied 1 N.Y.3d 501, 775 N.Y.S.2d 239, 807 N.E.2d 289;  Taylor-Gove v. St. Joseph's Hosp. Health Ctr., 242 A.D.2d 879, 880, 662 N.Y.S.2d 675, lv. denied 91 N.Y.2d 805, 668 N.Y.S.2d 560, 691 N.E.2d 632;  Delay v. Rhinehart, 176 A.D.2d 1211, 576 N.Y.S.2d 830).   By withdrawing her request for a Frye hearing concerning the testimony of Aubry, plaintiff waived her current contention that Aubry's testimony should have been stricken or that a Frye hearing should have been held (see e.g. Matter of Dyandria D., 22 A.D.3d 354, 355, 802 N.Y.S.2d 152, lv. denied 6 N.Y.3d 704, 811 N.Y.S.2d 337, 844 N.E.2d 792;  Grimaldi v. Spievogel, 300 A.D.2d 200, 751 N.Y.S.2d 737).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: