Brentwood Pain & Rehab Servs., P.C. v Eagle Ins. Co.
Annotate this CaseDecided on March 17, 2004
Civil Court Of The City Of New York, Queens County,
Brentwood Pain & Rehab Services, P.C., Claimant/Plaintiff/Petitioner, Eagle Insurance Company, Defendant/Respondent.
Index No. 101115/02
For Plaintiff: David Barshay, Esq., Baker & Barshay, 1393 Veterans
Mem. Highway Suite 210N, Hauppauge, NY 11788 For Defendants:
John J. Rosillo, Esq., Law Offices of Samuel Rubin, P.O. Box 9040,
P.O. Box 9040, Bethpage, NY 11714
Augustus C. Agate, J.
In an action to recover No Fault benefits, defendant moves by Order to Show Cause to quash plaintiff's subpoena served upon defendant's medical expert Irina Yefimov, M.D. for her appearance at an examination before trial. In the alternative, defendant moves for the Court to issue a protective order against plaintiff's subpoena. Defendant contends that plaintiff failed to move by court order for its subpoena, and served the subpoena prior to twenty (20) days of the examination before trial in violation of CPLR § 3106(b). Defendant further contends that plaintiff failed to demonstrate adequate special circumstances to warrant a deposition of a nonparty witness. Plaintiff opposes defendant's motion, arguing that defendant lacks standing to challenge the subpoena, as it has no proprietary rights or privilege over the nonparty witness.
The Court finds that plaintiff failed to present sufficient evidence of special circumstances to warrant a deposition of a nonparty witness and therefore grants defendant's motion. Plaintiff does not explain its failure to move by the Court for a subpoena and its failure to serve the subpoena in accordance with CPLR § 3106(b). Rather, plaintiff incorrectly contends that defendant has no standing to challenge the subpoena, as defendant does have a proprietary interest in the material sought. (See Kephart v. Burke, 306 AD2d 924 [4th Dept. 2003]; King v. State Farm Mutual Auto Ins. Co., 198 AD2d 748 [3rd Dept. 1993].)
The applicable provision regarding disclosure of nonparty witnesses is CPLR § 3101. Specifically, under CPLR § 3101(d)(1)(iii), "further disclosure concerning the expected testimony of any expert may be obtained only by court order upon a showing special circumstances...." CPLR § 3101(a)(4) is also a catch-all provision, allowing full disclosure of all evidence material and necessary by "any other person, upon notice stating the circumstances or reasons such disclosure is required." The Second Department has equated the catch-all provision of CPLR § 3101(a)(4) with the more [*2]stringent requirements of CPLR § 3101(d)(1)(iii), by requiring that the moving party show adequate special circumstances to warrant disclosure. (See Dioguardi v. St. John's Riverside Hospital, 144 AD2d 333, 334 [2nd Dept. 1988].)
Whether special circumstances have been demonstrated is a question committed to the sound discretion of the court to which the request is made. (See Brady v. Ottaway Newspapers, 63 NY2d 1031, 1032 [1984]; Dioguardi, 144 AD2d at 334.) To prove special circumstances, the party must show more than mere relevance. (See Lanzello v. Lakritz, 287 AD2d 601 [2nd Dept. 2001]; Anderson v. Kamalian, 231 AD2d 659, 660 [2nd Dept. 1996]; Dioguardi, 144 AD2d at 335.) Rather, the party must demonstrate that the information could not be obtained from other sources or that it is necessary to prepare for trial. See id.
In the present matter, plaintiff failed to demonstrate that the material sought could not be obtained from other sources or that it is necessary for trial. Plaintiff received the peer review report from the medical expert, which purportedly provided her analysis and basis for her opinion that the services were not medically necessary. Therefore, the subpoena would not elicit any material that plaintiff could not obtain from other sources. (See Bostrom v. William Penn Life Insurance Co., 285 AD2d 482 [2nd Dept. 2001][court granted a subpoena for medical examiner's testimony where the death certificate and autopsy report did not contain the basis for the medical examiner's conclusions, which were at issue in the case].) Further, plaintiff can receive some of the material requested by its demand for expert information pursuant to CPLR § 3101(d), without resorting to a nonparty deposition. (See Anderson, 231 AD2d at 660.)
Plaintiff also failed to demonstrate the need for the requested material in its preparation for trial. In King v. State Farm Mutual Automobile, 198 AD2d at 748 (3rd Dept. 1993), the Third Department ruled on facts nearly identical to those in the present case. Plaintiff in a No Fault action issued a subpoena for the deposition of a nonparty witness who performed an independent medical examination at the defendant insurance company's request. The defendant moved to quash the subpoena, arguing that no special circumstances were demonstrated to warrant a deposition. The defendant's motion was granted and on appeal, the Third Department affirmed the lower court's decision, finding that plaintiff failed to demonstrate that the discovery was necessary for trial preparation. See id.
As plaintiff failed to present sufficient evidence of special circumstances to warrant a nonparty deposition, defendant's motion to quash is granted. Defendant's remaining arguments are acknowledged but deemed moot.
This constitutes the decision and order of the Court.
Dated: March 17, 2004AUGUSTUS C. AGATE
Judge of the Civil Court
Decision Date: March 17, 2004
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