McGUIRE v. Francis C. Golier, etc., Respondent.

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

John J. McGUIRE, etc., Appellant, v. Marco D. ZARLENGO, etc., et al., Defendants, Francis C. Golier, etc., Respondent.

Decided: May 26, 1998

Before BRACKEN, J.P., and COPERTINO, SANTUCCI, FLORIO and McGINITY, JJ. Richard S. Scanlan, White Plains, for appellant. Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains (Edward J. Guardaro, Jr., of counsel), for respondent.

In an action to recover damages for medical malpractice, the plaintiff appeals (1) from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), dated June 13, 1997, as denied that branch of his motion which was to compel responses to certain questions posed at the deposition of the defendant Francis C. Golier, M.D., and (2), as limited by his brief, from so much of an order of the same court dated September 18, 1997, as, upon granting reargument, adhered to the prior determination.

ORDERED that the appeal from the order dated June 13, 1997, is dismissed, as that order was superseded by the order dated September 18, 1997, made upon reargument;  and it is further,

ORDERED that on the court's own motion, the notice of appeal from the order dated September 18, 1997, is deemed an application for leave to appeal (CPLR 5701[c] ), and leave to appeal from the order dated September 18, 1997, is granted;  and it is further,

ORDERED that the order dated September 18, 1997, is modified by deleting the provision thereof which adhered to the prior determination denying the motion and substituting therefor a provision granting that branch of the motion which was to compel the defendant Francis C. Golier, M.D., to answer questions posed at his deposition concerning (a) whether certain medical conditions of the decedent which existed in 1987 presented a surgical risk for the open reduction and internal fixation of the fracture of her right ankle in December 1991, and (b) whether in 1991 it was good and accepted medical practice to explore the causes of any deviations in an electrocardiogram of a patient who was a candidate for open reduction and internal fixation of the right ankle;  as so modified, the order entered September 19, 1997, is affirmed insofar as appealed from, without costs or disbursements.

 No appeal lies as of right from an order denying what was, in effect, an application for a ruling directing a witness to respond to questions posed during the course of a deposition (see, e.g., Mann v. Alvarez, 242 A.D.2d 318, 661 N.Y.S.2d 250;  King v. Salvation Army, 240 A.D.2d 473, 658 N.Y.S.2d 437;  Salmon v. RCP Associates, 243 A.D.2d 314, 663 N.Y.S.2d 38;   Smith v. Konica Bus. Machs., USA, 232 A.D.2d 398, 648 N.Y.S.2d 460;   Huggins v. New York City Tr. Auth., 225 A.D.2d 732, 640 N.Y.S.2d 199).   This court may treat the plaintiff's notice of appeal from such an order as an application for leave to appeal from that order, and grant leave to appeal (see, e.g., Rockwood Nat. Corp. v. Peat, Marwick, Mitchell & Co., 59 A.D.2d 573, 502 N.Y.S.2d 403;  Conch Assocs., Inc. v. Mercury, Inc., 245 A.D.2d 538, 666 N.Y.S.2d 499;  Allstate Financial Corp. v. Access Bag N. Pack Inc., 245 A.D.2d 328, 666 N.Y.S.2d 28;  Rosenblat v. Seidman, 243 A.D.2d 699, 663 N.Y.S.2d 290;  Matter of Santemma v. Chasco Co., 242 A.D.2d 273, 660 N.Y.S.2d 451).

 At an examination before trial, the defendant Francis C. Golier, M.D., a cardiologist, was asked whether certain cardiac conditions which existed in 1987 when the plaintiff's decedent was discharged from Montefiore Hospital presented a surgical risk for the open reduction and internal fixation of a fracture of the decedent's right ankle, surgery which was performed in December 1991 and is the subject of the instant action.   Dr. Golier was also asked if, in 1991, it was good and accepted medical practice to explore the causes of any deviations in an electrocardiogram of a patient such as the decedent, who was a candidate for open reduction and internal fixation of the right ankle.   The questions bear on the plaintiff's allegations that Dr. Golier failed to properly caution his codefendant physicians concerning the risks involved in the surgery (see, Forgays v. Merola, 222 A.D.2d 1088, 636 N.Y.S.2d 509;  Glass v. Rochester Gen. Hosp., 74 A.D.2d 732, 425 N.Y.S.2d 698;  Harley v. Catholic Med. Ctr., 57 A.D.2d 827, 394 N.Y.S.2d 62;  Johnson v. New York City Health & Hosps. Corp., 49 A.D.2d 234, 374 N.Y.S.2d 343), and the witness should have been directed to respond to questions in those areas.

MEMORANDUM BY THE COURT.

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