Opinion
August 28, 1986
Appeal from the Supreme Court, New York County (Fingerhood, J.).
Plaintiff-respondents contend that these orders constitute rulings directed to an examination before trial and, as such, are nonappealable, citing Tri-State Pipe Lines Corp. v Sinclair Refining Co. ( 26 A.D.2d 285). Defendant's motion sought to dismiss the complaint or to compel plaintiffs to appear for deposition. It was brought after the deposition of plaintiff Naomi Holland was commenced but adjourned when her attorney refused to allow her to answer questions about prior hospitalizations or treatment by other physicians. The motion papers recited this background, cited law in support of the respective arguments, and annexed the transcript of the deposition to date. In such an instance, as distinct from Tri-State, "where Special Term has not made any ruling on particular questions" and the orders spring from formal notices of motion and a full record, they are appealable (Blitz v Guardian Life Ins. Co., 99 A.D.2d 404, 405).
In a medical malpractice action, the plaintiff's physical condition is in issue and a plaintiff cannot put her condition in issue by bringing suit yet insulate herself from that disclosure of her condition necessary to the defense (see, Koump v Smith, 25 N.Y.2d 287; Greuling v Breakey, 56 A.D.2d 540). Such arbitrary limitations on disclosure as are imposed by these orders are unwarranted (see, Brewer v Jamaica Hosp., 73 A.D.2d 851).
Also unwarranted was Special Term's conditioning the resumption of the deposition of plaintiffs upon defendant's complying with their request for identification of names in defendant's records and whether the named persons were defendant's employees. No request had been made. Thus, the order impermissibly empowered plaintiffs to deny disclosure to defendant by never submitting a request.
Concur — Kupferman, J.P., Ross, Carro, Lynch and Rosenberger, JJ.