KANE v. SHAPIRO ROSENBAUM LIEBSCHUTZ AND NELSON

Reset A A Font size: Print

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

Peter B. KANE, M.D., Plaintiff-Appellant-Respondent, v. SHAPIRO, ROSENBAUM, LIEBSCHUTZ, AND NELSON, L.L.P., Defendant-Respondent-Appellant.

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (James D. Lantier of Counsel), for Plaintiff-Appellant-Respondent. Boylan, Brown, Code, Vigdor & Wilson, LLP, Rochester (Sanford R. Shapiro of Counsel), for Defendant-Respondent-Appellant.

 Plaintiff commenced this action seeking to recover fees allegedly due from defendant law firm for his services as an expert witness in a medical malpractice action, and defendant asserted a counterclaim seeking the contingent legal fees that it allegedly lost as a result of plaintiff's expert testimony in the underlying action.   Supreme Court erred in granting in part plaintiff's motion seeking disclosure sanctions by directing defendant to provide plaintiff with that portion of the trial transcript in the underlying action consisting of the direct testimony of plaintiff as well as his testimony on cross-examination.   The affidavit submitted by plaintiff's attorney in support of the motion failed to demonstrate “that counsel has conferred with counsel for [defendant] in a good faith effort to resolve the issues raised by the motion” (Uniform Rules for Trial Cts. [22 NYCRR] § 202.7[a][2];  see Amherst Synagogue v. Schuele Paint Co., Inc., 30 A.D.3d 1055, 1056-1057, 816 N.Y.S.2d 782).   In addition, the portion of the trial transcript sought by plaintiff is equally available to both parties, and plaintiff has the responsibility to obtain it if he believes that it is necessary to his defense of the counterclaim (see generally CPLR 3101[a];  Rios v. Donovan, 21 A.D.2d 409, 411, 250 N.Y.S.2d 818).   We thus conclude that plaintiff's motion should have been denied in its entirety (see Gordon v. Hancock, 292 A.D.2d 858, 738 N.Y.S.2d 914), and we therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in its entirety and as modified the order is affirmed without costs.

MEMORANDUM: