DANIELS v. ARMSTRONG

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

Nella Lane DANIELS, etc., respondent, v. Richard E. ARMSTRONG, et al., appellants, et al., defendant.

Decided: July 31, 2007

HOWARD MILLER, J.P., GLORIA GOLDSTEIN, STEVEN W. FISHER, and JOSEPH COVELLO, JJ. Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Andrew S. Regenbaum and Jennifer E. Coroian of counsel), for appellants. Goldsmith, Richman & Harz, LLP, New York, N.Y. (Christina Ctorides of counsel), for respondent.

In an action to recover damages for medical malpractice and wrongful death, etc., the defendants Richard E. Armstrong, Richard E. Armstrong, M.D., P.C., and St. Luke's Cornwall Hospital appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated March 30, 2006, as denied their motion pursuant to CPLR 3101(d)(2) to compel the plaintiff to disclose a certain report completed by a medical expert with whom she consulted.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the appellants' motion to compel production of a report completed by a medical expert with whom the plaintiff consulted.   The plaintiff established that the report was prepared solely in anticipation of litigation (see CPLR 3101[d][2];  Kephart v. Burke, 306 A.D.2d 924, 925, 762 N.Y.S.2d 320;  Santariga v. McCann, 161 A.D.2d 320, 322, 555 N.Y.S.2d 309).   Further, the appellants failed to establish that they had a substantial need for the report in the preparation of their case and could not, without undue hardship, obtain the substantial equivalent of the report by other means (see CPLR 3101[d][2];  Heimanson v. Farkas, 292 A.D.2d 421, 422, 738 N.Y.S.2d 894;  Martinez v. KSM Holding, 294 A.D.2d 111, 111-112, 741 N.Y.S.2d 519;  DeGourney v. Mulzac, 287 A.D.2d 680, 732 N.Y.S.2d 97).

The appellants' remaining contentions either are without merit or do not require reversal.

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