BRANDES v. Wayne R. Sebastiano, nonparty-respondent.

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

Pamela BRANDES, etc., appellant, v. NORTH SHORE UNIVERSITY HOSPITAL, et al., defendants; Wayne R. Sebastiano, nonparty-respondent.

Decided: October 31, 2005

BARRY A. COZIER, J.P., DAVID S. RITTER, ROBERT A. SPOLZINO, and ROBERT J. LUNN, JJ. Norman Leonard Cousins, New York, N.Y., for appellant. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola, N.Y. (Marianne C. Gelfman of counsel), for nonparty-respondent.

In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated July 22, 2004, which granted the motion of the nonparty, Wayne R. Sebastiano, pursuant to CPLR 2304 and 3103, for a protective order quashing, vacating, and setting aside the plaintiff's notice of deposition and subpoena notice served upon him.

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

An affidavit showing unusual or unanticipated circumstances justifying a departure from the general rule foreclosing discovery after the filing of a note of issue (see 22 NYCRR 202.21[d] ) was not required here since the relief sought, deposition of a nonparty treating physician of the plaintiff's decedent, was not in the nature of discovery (see CPLR 3101[d][1][iii];  Jones v. Sherpa, 5 A.D.3d 634, 774 N.Y.S.2d 767;  Beliavskaia v. Perkin, 227 A.D.2d 246, 642 N.Y.S.2d 522;  Hill v. Sheehan, 154 A.D.2d 912, 545 N.Y.S.2d 868).   Therefore, the Supreme Court erred in granting the motion for a protective order.

The plaintiff's remaining contention is academic in light of our determination.

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