Opinion
May 26, 1998
Appeal from the Supreme Court, Westchester County (Bellantoni, J.)
Ordered that the appeal from the order dated June 13, 1997, is dismissed, as that order was superseded by the order dated September 18, 1997, made upon reargument; and it is further,
Ordered that on the Courts own motion, the notice of appeal from the order dated September 18, 1997, is deemed an application for leave to appeal (CPLR 5701 [c]), and leave to appeal from the order dated September 18, 1997, is granted; and it is further,
Ordered that the order dated September 18, 1997, is modified by deleting the provision thereof which adhered to the prior determination denying the motion and substituting therefor a provision granting that branch of the motion which was to compel the defendant Francis C. Goher, M.D., to answer questions posed at his deposition concerning (a) whether certain medical conditions of the decedent which existed in 1987 presented a surgical risk for the open reduction and internal fixation of the fracture of her right ankle in December 1991, and (b) whether in 1991 it was good and accepted medical practice to explore the causes of any deviations in an electrocardiogram of a patient who was a candidate for open reduction and internal fixation of the right ankle; as so modified, the order entered September 19, 1997, is affirmed insofar as appealed from, without costs or disbursements.
No appeal lies as of right from an order denying what was, in effect, an application for a ruling directing a witness to respond to questions posed during the course of a deposition ( see, e.g., Mann v. Alvarez, 242 A.D.2d 318; King v. Salvation Army, 240 A.D.2d 473; Salmon v. RCP Assocs., 243 A.D.2d 314; Smith v. Konica Bus. Machs., 232 A.D.2d 398; Huggins v. New York City Tr. Auth., 225 A.D.2d 732). This Court may treat the plaintiff's notice of appeal from such an order as an application for leave to appeal from that order, and grant leave to appeal ( see, e.g., Rock wood Natl. Corp. v. Peat, Marwick, Mitchell Co., 59 A.D.2d 573; Conch Assocs. v. Mercury, Inc., 245 A.D.2d 538; Allstate Fin. Corp. v. Access Bag N Pack, 245 A.D.2d 325; Rosenblat v. Seidman, 243 A.D.2d 699; Matter of Santemma v. Chasco Co., 242 A.D.2d 273).
At an examination before trial, the defendant Francis C. Goher, M.D., a cardiologist, was asked whether certain cardiac conditions which existed in 1987 when the plaintiff's decedent was discharged from Montefiore Hospital presented a surgical risk for the open reduction and internal fixation of a fracture of the decedents right ankle, surgery which was performed in December 1991 and is the subject of the instant action. Dr. Goher was also asked if, in 1991, it was good and accepted medical practice to explore the causes of any deviations in an electrocardiogram of a patient such as the decedent, who was a candidate for open reduction and internal fixation of the right ankle. The questions bear on the plaintiff's allegations that Dr. Goher failed to properly caution his codefendant physicians "concerning the risks involved in the surgery ( see, Forgays v. Merola, 222 A.D.2d 1088; Glass v. Rochester Gen. Hosp. 74 A.D.2d 732; Harley v. Cathedral Med. Ctr., 57 A.D.2d 827; Johnson v. New York City Health Hosps. Corp., 49 A.D.2d 234), and the witness should have been directed to respond to questions in those areas.
Bracken, J.P., Copertino, Santucci, Florio and McGinity, JJ., concur.