Opinion
2003-08459.
Decided June 7, 2004.
In an action to recover damages for medical malpractice and wrongful death, the defendant appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated August 27, 2003, which granted the plaintiff's motion for a protective order pursuant to CPLR 3103 quashing his subpoena of a nonparty treating physician.
Sedgwick, Detert, Moran Arnold, LLP, New York, N.Y. (Jason D. Turken and Howard R. Cohen of counsel), for appellant.
Brand Brand Burke, New York, N.Y. (Thomas S. Pardo of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, ROBERT W. SCHMIDT, BARRY A. COZIER, PETER B. SKELOS, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
A party seeking discovery from a nonparty witness must show special circumstances ( see Lanzello v. Lakritz, 287 A.D.2d 601; Dioguardi v. St. John's Riverside Hosp., 144 A.D.2d 333, 334). The existence of such special circumstances is not established merely upon a showing that the information sought is relevant. Rather, special circumstances are shown by establishing that the information sought cannot be obtained through other sources ( see Murphy v. Macarthur Holding B., 269 A.D.2d 507). The Supreme Court properly determined that the defendant did not show special circumstances. Therefore, the Supreme Court properly granted the plaintiff's motion for a protective order pursuant to CPLR 3103 quashing the defendant's subpoena of a nonparty treating physician.
ALTMAN, J.P., S. MILLER, SCHMIDT, COZIER and SKELOS, JJ., concur.