Opinion
CA 02-02608
June 13, 2003.
Appeal from that part of an order of Supreme Court, Niagara County (Fricano, J.), entered August 16, 2002, which granted the motion of defendants to quash nonparty subpoenas duces tecum issued by plaintiff to, inter alia, Dr. Anthony M. Leone and Mark D. Becker.
GROSSMAN, LEVINE CIVILETTO, NIAGARA FALLS (ERIC B. GROSSMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
SLIWA LANE, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action seeking damages for injuries she sustained in an automobile accident. We conclude that Supreme Court properly granted defendants' motion to quash nonparty subpoenas duces tecum issued by plaintiff to Dr. Anthony M. Leone, a consulting physician, and Mark D. Becker, general manager of a firm that provides independent medical evaluations. Initially, we reject plaintiff's contention that defendants lack standing to contest the subpoenas ( see e.g. King v. State Farm Mut. Auto. Ins. Co., 198 A.D.2d 748). Unlike the cases upon which plaintiff relies, defendants here have a proprietary interest in the materials sought, and, in addition, those materials may contain privileged information ( cf. Matter of Oncor Communications v. State of New York, 218 A.D.2d 60, 62; 38-14 Realty Corp. v. New York City Dept. of Consumer Affairs, 103 A.D.2d 804).
Turning to the merits of defendant's motion to quash, a trial court has broad discretion in supervising disclosure, and absent an abuse of that discretion, the court's exercise of such authority will not be disturbed ( see Gadley v. U.S. Sugar Co., 259 A.D.2d 1041, 1042; see also MS Partnership v. Wal-Mart Stores, 273 A.D.2d 858). Moreover, where, as here, additional discovery is sought after plaintiff has filed a note of issue, the party seeking additional discovery must demonstrate that "unusual or unanticipated circumstances develop[ed] subsequent to the filing *** which require additional pretrial proceedings to prevent substantial prejudice" ( 22 NYCRR 202.21 [d]; see Di Matteo v. Grey, 280 A.D.2d 929, 930). Particularly in light of defendant's affirmative showing to the contrary, plaintiff failed to demonstrate that Becker may have information that is "material and necessary" to the prosecution of this action (CPLR 3101 [a] [1], [4]; see e.g. Maxwell v. Snapper, Inc., 249 A.D.2d 374; King, 198 A.D.2d at 748).
With respect to Dr. Leone, his report constitutes material prepared in anticipation of litigation and is therefore conditionally privileged ( see CPLR 3101 [d] [2]; Renucci v. Mercy Hosp., 124 A.D.2d 796, 797). Plaintiff failed to show that she has a substantial need for that report or that she could not obtain the substantial equivalent of that report by other means ( see Santariga v. McCann, 161 A.D.2d 320, 322; see also Barrowman v. Niagara Mohawk Power Corp., 252 A.D.2d 946, lv denied 92 N.Y.2d 817; Massachusetts Bay Ins. Co. v. Stamm, 228 A.D.2d 321, 322).