LENNON v. Mark S. Arginteanu, M.D., Defendant-Appellant. (2008)

Order, Supreme Court, New York County (Karen S. Smith, J.), entered March 1, 2007, which, after presentation of argument at a conference, insofar as appealed from, refused to strike defendant-appellant's deposition taken before his joinder, unanimously affirmed, without costs.

We deem the notice of appeal to be a motion for leave to appeal and grant such leave (CPLR 5701[c];  see Serradilla v. Lords Corp., 12 A.D.3d 279, 785 N.Y.S.2d 433 [2004] ).   Plaintiff commenced an action against her employer pursuant to the Federal Employees Liability Act. An IME was conducted by defendant-appellant, then a nonparty.   Thereafter, plaintiff took the nonparty deposition of appellant, who, without a lawyer present, testified that he altered his medical reports of the IME at the behest of a certain then nonparty.   Plaintiff then instituted a separate action against appellant and others, which was consolidated with the original FELA action against the employer.   We reject appellant's arguments that his nonparty deposition should be stricken because it had not been directed by court order and was taken without his lawyer present.   It appears that plaintiff served a notice to take appellant's deposition as a nonparty, together with a subpoena, upon the employer, then the only defendant in the action, and appellant, who appeared at the deposition without counsel and testified with respect to his medical examination of plaintiff.   Since plaintiff properly noticed the deposition in accordance with CPLR 3106(b) and 3107, and since neither the employer nor appellant sought a protective order, and as there are no policy proscriptions against physicians appearing at depositions without lawyers (cf. Arons v. Jutkowitz, 9 N.Y.3d 393, 401-402, 409-410, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007] [attorneys may interview an adverse party's treating physician privately] ), no basis exists for striking the deposition.