MORTON v. BROOKHAVEN MEMORIAL HOSPITAL

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

Virginia MORTON, et al., Appellants, v. BROOKHAVEN MEMORIAL HOSPITAL, a/k/a Brookhaven Memorial Hospital Medical Center, et al., Respondents.

Decided: September 29, 2003

ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN and DANIEL F. LUCIANO, JJ. Daniel A. Zahn, P.C., Holbrook, NY, for appellants. Squires, Cordrey & Noble, New York, N.Y. (Kerry A. McManus of counsel), for respondent Brookhaven Memorial Hospital, a/k/a Brookhaven Memorial Hospital Medical Center. McHenry, Horan & Lapping, P.C., Syosset, N.Y. (Lynne B. Prommersberger of counsel), for respondents Steven Shepherd and Robert N. Prochep. Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, N.Y. (Patrick G. Toner of counsel), for respondent Julia Ann Fahey.

In an action to recover damages for medical malpractice, the plaintiffs appeal (1), by permission, from an order of the Supreme Court, Suffolk County (Costello, J.), dated January 23, 2001, which, sua sponte, directed the appointment of a Special Referee to supervise and direct all discovery, (2) from an order of the same court dated March 7, 2001, which, inter alia, granted the plaintiffs' motion to compel discovery only to the extent set forth in the order dated January 23, 2001, and (3), by permission, from an order of the same court dated July 31, 2001, which confirmed the report of the Special Referee, accepted the bill of the Special Referee, and apportioned the payment of the Special Referee's bill.

ORDERED that the orders are affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiffs maintain that the Supreme Court erred in appointing a private attorney as a Special Referee in contravention of CPLR 3104(b).  In light of the fact that the plaintiffs failed to raise this issue until after the Special Referee's report was written and further discovery had concluded, the plaintiffs have waived their right to contest the appointment of the Special Referee (see Dime Sav. Bank of N.Y. v. Glavey, 214 A.D.2d 419, 625 N.Y.S.2d 181, lv. denied 87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999, cert. denied 517 U.S. 1221, 116 S.Ct. 1849, 134 L.Ed.2d 950;  Flotteron v. Steinberg, 106 A.D.2d 427, 482 N.Y.S.2d 521;  Fisher v. Fisher, 223 App.Div. 19, 21, 227 N.Y.S. 345, affd. 250 N.Y. 313, 165 N.E. 460).

The plaintiffs' remaining contentions are without merit.

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