Opinion
Nos. 2668 2669 Index No. 301016/10 Case Nos. 2023-04777 2024-00733
10-01-2024
Migdalia Diaz, as Administratrix of the Estate of Felix Colon, Deceased, Plaintiff-Appellant, v. City of New York et al., Defendants-Respondents.
Alexander J. Wulwick, New York for appellant. Muriel Goode-Trufant, Acting Corporation Counsel, New York (Michael Snow of counsel), for respondents.
Alexander J. Wulwick, New York for appellant.
Muriel Goode-Trufant, Acting Corporation Counsel, New York (Michael Snow of counsel), for respondents.
Before: Moulton, J.P., Mendez, Higgitt, O'Neill Levy, Michael, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered July 28, 2023, which, to the extent appealed from as limited by the briefs, granted defendants' motion for a protective order prohibiting plaintiff from asking any hypothetical questions during the deposition of City Medical Examiner, Kristen Landi, M.D., unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion denied. Appeal from order, same court and Justice, entered on or about December 8, 2023, which, to the extent appealed from, denied plaintiff's motion for leave to reargue, unanimously dismissed, without costs, as taken from a nonappealable order.
Although orders deciding motions made on notice are generally appealable as of right (CPLR 5701[a][2]), this Court has held that orders that consist of "[r]ulings directed to an examination before trial, whether made upon motion papers or not, are not appealable as of right" (Ward v City of New York, 226 A.D.3d 493 [1st Dept 2024]; see Tommy Hilfiger U.S.A. v. Insurance Co. of N. Am., 239 A.D.2d 255, 255 [1st Dept 1997]). In the exercise of discretion, we deem the notice of appeal from the July 28, 2023 order to be an application for leave to appeal pursuant to CPLR 5701(c), and grant such leave (see Marrero v Modern Food Ctr. Inc., 209 A.D.3d 533, 533-534 [1st Dept 2022]).
The court improvidently exercised its discretion in prospectively directing that no hypothetical questions would be permitted during the deposition of Dr. Landi, without knowing what those questions might be. Rulings on the propriety of such questions should be made only after a specific question has been asked and its answer refused (see K.S. v City of New York, 56 A.D.3d 527, 528 [2d Dept 2008]). Evidence of the decedent's condition as observed by Dr. Landi when she performed the autopsy is relevant to plaintiff's claims, particularly the claim that the police officers, who were employed by the City and pursuing the decedent at the time of the alleged incident, negligently and proximately caused the decedent's death by stuffing plastic bags containing narcotics into his mouth and throat, thereby suffocating him (see Glass v Rochester Gen. Hosp., 74 A.D.2d 732-733 [4th Dept 1980]). Because Landi conducted the decedent's autopsy, she can be examined not only with respect to the circumstances of that autopsy, but also may be required to give expert opinion testimony relating to the autopsy (see Hardter v Semel, 197 A.D.2d 846, 846 [4th Dept 1993]).