Hutton v Aesthetic Surgery, P.C.

Hutton v Aesthetic Surgery, P.C. 2018 NY Slip Op 03652 Decided on May 22, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 22, 2018
Sweeny, J.P., Webber, Gesmer, Singh, Moulton, JJ.
6640N 800030/11

[*1] Kathleen Hutton, Plaintiff-Appellant,

v

Aesthetic Surgery, P.C., et al., Defendants, Alex M. Greenberg, D.D.S., P.C., et al., Defendants-Respondents.

Lutfy & Santora, Staten Island (James L. Lutfy of counsel), for appellant.

Rawle & Henderson, LLP, New York (Sylvia E. Lee of counsel), for

respondents.

Order, Supreme Court, New York County (Alice Schlesinger, entered September 16, 2017, which, in this action for dental and plastic surgical malpractice, granted the motion of defendants Alex M. Greenberg, D.D.S., P.C. and Alex M. Greenberg, D.D.S. (Dr. Greenberg) for a protective order to the extent of placing certain limits on Dr. Greenberg's deposition, unanimously affirmed, without costs.

The motion court did not improvidently exercise its discretion in limiting further deposition of Dr. Greenberg to one day, which was in addition to the two previous days he had been deposed, and in limiting the scope of inquiry as concerned a surgical procedure performed by codefendant Elliot Rose. The procedure performed by Rose was one that Dr. Greenberg was not trained in and did not perform in his practice, and did he not assist on the date in question (see e.g. McKay v Khabele, 46 AD3d 258 [1st Dept 2007]). Plaintiff failed to show that the limitations deprived them of "deposition testimony relevant and necessary for preparation for trial" (Smukler v 12 Lofts Realty, Inc., 178 AD2d 125, 126 [1st Dept 1991].

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 22, 2018

CLERK