JAMES STANG PLAINTIFF APPELLANT v. SADASHIV SHENOY DEFENDANT RESPONDENT ET AL DEFENDANTS (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating that part of the order prohibiting questions regarding the report of R.N. Sawyer, Jr., M.D., or the personal health condition or information of defendant Sadashiv S. Shenoy, M.D., relative thereto during his further deposition and as modified the order is affirmed without costs.

Memorandum: In this medical malpractice action, plaintiff appeals from an order that, inter alia, granted in part and denied in part his motion to compel defendant Sadashiv S. Shenoy, M.D. (defendant), to appear for a further deposition and prohibited plaintiff from asking questions regarding a report concerning defendant that was prepared pursuant to an aging provider policy by nonparty R.N. Sawyer, Jr., M.D., or defendant's “personal health condition or information.”

As a preliminary matter, Supreme Court's ruling limiting the scope of the continued deposition, although reduced to an order, is not appealable as of right (see Czechowski v Buffalo Niagara Med. Campus, Inc., 175 AD3d 1817, 1817 [4th Dept 2019]; Roggow v Walker, 303 AD2d 1003, 1003-1004 [4th Dept 2003]; see generally CPLR 5701 [a]). “In the exercise of our discretion, however, we treat the notice of appeal as an application for permission to appeal and grant such permission” (Czechowski, 175 AD3d at 1817 [internal quotation marks omitted]; see Roggow, 303 AD2d at 1004; see also CPLR 5701 [c]).

CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” “The words, ‘material and necessary’, are ․ to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Garcia v Town of Tonawanda, 210 AD3d 1483, 1485 [4th Dept 2022]).

We agree with plaintiff that the court abused its discretion by imposing the limitation of questioning on Dr. Sawyer's report and defendant's health condition relative thereto inasmuch as the limitation could result in the preclusion of testimony that would be relevant at trial or in preparation for trial (see Czechowski, 175 AD3d at 1818; see generally Allen, 21 NY2d at 406-407). Moreover, as we have previously ruled, because the written report of Dr. Sawyer was disclosed to the public at large by defendant in a separate action, the report is not protected by the statutory privilege (see Abdullahi v Shenoy, 174 AD3d 1334, 1335 [4th Dept 2019]). We therefore modify the order by vacating that part prohibiting questions regarding the report of R.N. Sawyer, Jr., M.D., or the personal health condition or information of defendant relative thereto during his further deposition.

Entered: October 2, 2026

Ann Dillon Flynn

Clerk of the Court