Allen v Hendrickson

[*1] Allen v Hendrickson 2013 NY Slip Op 50799(U) Decided on May 20, 2013 Supreme Court, Albany County Lynch, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 20, 2013
Supreme Court, Albany County

Carol A. Allen, Individually, and as Administratrix of the Estate of TIMOTHY J. ALLEN, Plaintiff,

against

Paul S. Hendrickson, D.O., SCHENECTADY ANESTHESIA ASSOCIATES, PROFESSIONAL CORPORATION, FRANK L. GENOVESE, M.D. NEW YORK SPINE & NEUROSURGERY ASSOCIATES, P.C., WINSTON RENOSHAN JESHURAN, M.D., ALBANY MEDICAL COLLEGE and ELLIS HOSPITAL, Defendants.



3545-08



APPEARANCES:POWERS & SANTOLA, LLP

Attorneys for Plaintiff

(Laura M. Jordan, Esq., of Counsel)

39 North Pearl Street

Albany, New York 12207

MAYNARD, O'CONNOR, SMITH & CATALINOTTO

Attorneys for Defendants Paul S. Hendrickson, D.O.

and Schenectady Anesthesia Associates, PC

(Aaron F. Carbone, Esq., of Counsel)

6 Tower Place

Albany, New York 12203

BURKE, SCOLAMIERO, MORTATI & HURD, LLP

Attorneys for Defendants Frank L. Genovese, M.D.

and New York Spine & Neurosurgery Associates, P.C.

(Thomas A. Cullen, Esq., of Counsel)

7 Washington SquareP.O. Box 15085

Albany, New York 12212-5083

Michael C. Lynch, J.

By Order to Show Cause (Lynch, J.) returnable May 17, 2013, defendants Paul S. Hendrickson, D.O. and Schenectady Anesthesia Associates, P.C. (hereinafter defendants) seek an order to compel and preclude pursuant to CPLR 3124 and 3126 requiring plaintiff to provide more detailed qualification information as to their expert witness, a board certified anesthesiologist. To date, plaintiff has specifically identified the expert as a practicing anesthesiologist in the Northeast; who completed a residency in anesthesiology at Albert Einstein College of Medicine in Bronx, New York; and who is licensed to practice medicine in two northeast states and a southern state, including New York. In opposing the application, plaintiff's counsel asserts that if any of the further qualification information demanded by defendants is provided, the expert's identity will readily be revealed. Further, plaintiff has filed a cross motion for a protective order pursuant to CPLR 3101 and 3103.

Pursuant to CPLR 3101[d][1][I], upon request, a party is required to "disclose in reasonable detail...the qualifications of each expert witness..."; except that in a medical malpractice action, the party "may omit the names of medical...experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph".

In Mead v. Dr. Rajadhyax Dental Group, (34 AD3d 1139), the Third Department reiterated the standard established in both Morris v. Clements (228 AD2d 990, 991) and Pizzi v. Muccia (127 AD2d 338, 340) as follows:

"This Court has stated that virtually all information regarding expert

witnesses and their anticipated testimony is discoverable under CPLR

3101[d][1][I], unless the request is so detailed that disclosure would have

the net effect of disclosing the experts' identities" (internal quotations

omitted).

This approach balances the competing components of the statute, by necessitating the disclosure of the expert's qualifications, while preserving the identity of that expert. This Court is mindful that the Second Department has adopted a more literal construction of CPLR 3101[1[d][i] in Thomas v. Alleyne (302 AD2d 36) that recognizably supports defendants' thesis plaintiff is obligated to disclose far more detail as to the expert's qualifications. This Court, however, is required to follow the Third Department standard (see Mountain View Coach [*2]Lines, Inc. v. Storms, 102 AD2d 663, 664).

Through plaintiff's submissions, including the in camera affidavit of counsel [FN1], the Court is satisfied that plaintiff has provided adequate disclosure under the Mead standard, and that any further detail would inevitably reveal the identity of plaintiff's expert witness.

Accordingly, defendants' motion to compel further disclosure is denied; and plaintiff's cross motion for a protective order is granted, all without costs.

This memorandum represents the Decision and Order of this Court. The original Decision and Order is being mailed to the attorney for plaintiff. The original papers are being sent to the AlbanyCounty Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220.

Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:May, 2013

Albany, New York

________________________________________

Hon. Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Order to Show Cause (Lynch, J.) returnable May 17, 2013 with Exhibits "A" - "F";

2.Notice of Cross Motion dated May 14, 2013; Affirmation of Laura M. Jordan, Esq.

dated May 14, 2013 with Exhibits "1" - "3"; Memorandum of Law dated May 14,

2013;

3.In Camera Affirmation of Laura M. Jordan, Esq. dated May 14, 2013 with Exhibit

"A";

4.Affirmation in Opposition of Thomas A. Cullen, Esq. dated May 16, 2013, with

Exhibits "A" - "B"; and

5.Reply Affidavit of Aaron Carbone, Esq. dated May 16, 2013. Footnotes

Footnote 1:For purposes of preserving the record, this in camera affidavit will be filed in a sealed envelope with the other motion papers, subject to opening only upon further court order.