TROTMAN v. State University of New York Health Center at Brooklyn University (Downstate Medical Center), nonparty respondent.

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

Anthony M. TROTMAN, etc., et al., plaintiffs, v. HEWLETT PACKARD COMPANY, appellant, Patricia Mitchell, respondent, et al., defendant; State University of New York Health Center at Brooklyn University (Downstate Medical Center), nonparty respondent.

Decided: February 22, 1999

CORNELIUS J. O'BRIENJ.P., DAVID S. RITTER, DANIEL W. JOY, MYRIAM J. ALTMAN, JJ. Lester Schwab Katz & Dwyer, New York, N.Y. (Annette Hasapidis and Steven Prystowsky of counsel), for defendant-appellant.

In an action, inter alia, to recover damages for medical malpractice and products liability, the defendant Hewlett Packard Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Patterson, J.), dated September 12, 1997, as, in effect, denied that branch of its motion which was to compel the nonparty, State University of New York Health Center at Brooklyn University (Downstate Medical Center), to produce documents containing any statements of the defendant Patricia Mitchell.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was to compel the nonparty State University of New York Health Center at Brooklyn University (Downstate Medical Center) to produce documents containing any statements of the defendant Patricia Mitchell is granted, and within 30 days of service upon it of this decision and order with notice of entry, the nonparty State University of New York Health Center at Brooklyn University (Downstate Medical Center) shall produce for the defendant Hewlett Packard Company documents containing any statements of the defendant Patricia Mitchell.

The plaintiffs seek to recover damages from multiple defendants for injuries allegedly suffered by the infant plaintiff when he went into cardiac arrest at the nonparty State University of New York Health Center at Brooklyn University (Downstate Medical Center) (hereinafter Downstate).   The plaintiffs also filed a claim in the Court of Claims against Downstate arising out of the same incident.   Insofar as is relevant to the instant appeal, the defendant Hewlett Packard Company (hereinafter HP) moved, inter alia, to compel Downstate to produce any documents containing any statements by the defendant Patricia Mitchell in connection with the incident.   Downstate did not oppose the motion, but rather, the Attorney-General's office purported to respond to the motion by letter dated August 8, 1997, in which an Assistant Attorney-General summarized Mitchell's statement.   The Supreme Court, inter alia, denied the motion insofar as it concerned the request concerning Mitchell's statement.   We reverse.

HP is entitled to a copy of Mitchell's actual statement, not merely an Assistant Attorney-General's summation thereof (see, CPLR 3120[a], [b] ).

MEMORANDUM BY THE COURT.

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