FRISTROM v. Westchester County Medical Center, et al., Respondents. (1997)

In an action to recover damages for medical malpractice, the plaintiffs appeal from so much of an order of the Supreme Court, Westchester County (Rosato, J.), entered April 24, 1996, as, upon reargument, adhered to its prior determination denying that branch of the plaintiffs' motion which was to compel nonparty witnesses to answer questions at their depositions which sought their expert opinions.

ORDERED that, on the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[c]);  and it is further,

ORDERED that the order is affirmed, with costs.

The Supreme Court properly held that the plaintiffs could not compel nonparty witnesses to answer questions at their depositions which sought their expert opinions (see, Cuccia v. Brooklyn Med. Group, 171 A.D.2d 836, 567 N.Y.S.2d 772;  Horowitz v. Upjohn Co., 149 A.D.2d 467, 539 N.Y.S.2d 961;  Waters v. East Nassau Med. Group, 92 A.D.2d 893, 460 N.Y.S.2d 98;  Wilson v. McCarthy, 53 A.D.2d 860, 385 N.Y.S.2d 581).

MEMORANDUM BY THE COURT.