Opinion
10740N Index 156590/16E
01-07-2020
Joseph BIRRO, Jr., Plaintiff-Respondent, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, et al., Defendants-Appellants.
London Fischer LLP, New York (Brian A. Kalman of counsel), for appellants. The Perecman Firm PLLC, New York (Peter D. Rigelhaupt of counsel), for respondent.
London Fischer LLP, New York (Brian A. Kalman of counsel), for appellants.
The Perecman Firm PLLC, New York (Peter D. Rigelhaupt of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Kapnick, Oing, JJ.
The court exercised its discretion in a provident manner in denying defendants' motion for leave to depose two physicians, one who treated plaintiff for prior injuries, and another who treated plaintiff following the accident at issue. Defendants failed to show that plaintiff's statements as recorded by the physicians conflicted with his deposition testimony (compare Schroder v. Consolidated Edison Co. of N.Y., 249 A.D.2d 69, 70–71, 670 N.Y.S.2d 856 [1st Dept. 1998] ). Absent proof of a discrepancy between the medical records and plaintiff's testimony, defendants failed to show that the deposition of the physicians was material and necessary to their defense (see CPLR 3101[a] ). Furthermore, defendants failed to demonstrate that the physicians' testimony regarding plaintiff's spine and knee conditions would be unrelated to their diagnosis and treatment, and is the only avenue of discovering the information sought (see Tuzzolino v. Consolidated Edison Co. of N.Y., 135 A.D.3d 447, 22 N.Y.S.3d 430 [1st Dept. 2016] ; Ramsey v. New York Univ. Hosp. Ctr., 14 A.D.3d 349, 789 N.Y.S.2d 104 [1st Dept. 2005] ).