Hinds v Fischer

[*1] Hinds v Fischer 2009 NY Slip Op 51594(U) [24 Misc 3d 139(A)] Decided on July 22, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 22, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, J.

Gary Hinds, Plaintiff-Respondent,

against

Jean Fischer, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), entered August 23, 2007, which, inter alia, denied her motion, in effect, for issuance of a commission pursuant to

CPLR 3108 to examine nonparty witnesses in Connecticut and to compel the production of plaintiff's medical records.
Per Curiam.
Order (Barbara Jaffe, J.), entered August 23, 2007,
affirmed, without costs.

The motion court did not improvidently exercise its
broad discretion in the supervision of discovery-related matters (see Red Apple Supermarkets, Inc. v Malone & Hyde, Inc., 251 AD2d 78 [1998]) by denying defendant's eleventh-hour motion to take the deposition of several nonparty witnesses in Connecticut. Viewing the pro se defendant's application as one seeking the issuance of a commission pursuant to CPLR 3108, the motion was properly denied in the absence of any showing that "the proposed out-of-State deponent[s] would not cooperate with a notice of deposition or would not voluntarily come within this State or that the judicial imprimatur accompanying a commission will be necessary or helpful when the [designee] seeks the assistance of the foreign court in compelling the witness[es] to attend the examination[s]'" (Reyes v Riverside Park Community [Stage I], Inc., 59 AD3d 219 [2009], quoting, inter alia, Wiseman v American Motors Sales Corp, 103 AD2d 230, 235 [1984]).

We also sustain the denial of that branch of defendant's motion for discovery of plaintiff's medical records pertaining to plaintiff's physical condition (including "AIDS, sexually transmitted diseases [and] alcohol and/or substance abuse"), since such records are privileged and are not "material and necessary" to the defense of plaintiff's sole remaining defamation cause of action (CPLR 3101[a]; see generally Monica W. v Milevoi, 252 AD2d 260, 262-263 [1999]). Defendant's remaining discovery request has been rendered moot.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


570675/07I concur I concur
Decision Date: July 22, 2009