FAZIO v. FEDERAL EXPRESS CORPORATION

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Supreme Court, Appellate Division, First Department, New York.

Michael FAZIO, Plaintiff-Respondent, v. FEDERAL EXPRESS CORPORATION, et al., Defendants-Appellants.

Decided: May 30, 2000

SULLIVAN, P.J., TOM, MAZZARELLI, WALLACH and BUCKLEY, JJ. Herbert S. Subin, for Plaintiff-Respondent. Philip Semprevivo, for Defendants-Appellants.

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about October 7, 1999, which denied defendants' motion to quash a judicial subpoena duces tecum issued to non-party witness Jerome Block, M.D., unanimously reversed, on the law, without costs, and the motion granted.

In a personal injury action that is now limited to the issue of damages, defense witness Block conducted an independent medical examination of plaintiff, and also offered expert opinion as to the medical records compiled by plaintiff's physicians.   Efforts were made, at Dr. Block's deposition, to impeach him for his alleged proclivity for appearing as a defense witness in such cases.   The challenged subpoena seeks Dr. Block's financial records for the previous five years, “pertaining to all money earned for testimony regarding exams, and consults.”

 The use of a judicial subpoena for the sole purpose of showing that an examining physician's history of financial compensation indicates a defense-oriented predisposition-in other words, for the purpose of impeaching the witness' general credibility-is improper.   Such information is irrelevant and immaterial to the underlying facts at issue in the case, and the subpoena should have been quashed (Pernice v. Devora, 238 A.D.2d 558, 657 N.Y.S.2d 70).

MEMORANDUM DECISION.