Opinion
2001-08156, 2001-08157, 2001-08158
Submitted September 4, 2003.
September 29, 2003.
In an action to recover damages for medical malpractice, the plaintiffs appeal (1), by permission, from an order of the Supreme Court, Suffolk County (Costello, J.), dated January 23, 2001, which, sua sponte, directed the appointment of a Special Referee to supervise and direct all discovery, (2) from an order of the same court dated March 7, 2001, which, inter alia, granted the plaintiffs' motion to compel discovery only to the extent set forth in the order dated January 23, 2001, and (3), by permission, from an order of the same court dated July 31, 2001, which confirmed the report of the Special Referee, accepted the bill of the Special Referee, and apportioned the payment of the Special Referee's bill.
Daniel A. Zahn, P.C., Holbrook, N.Y. for appellants.
Squires, Cordrey Noble, New York, N.Y. (Kerry A. McManus of counsel), for respondent Brookhaven Memorial Hospital, a/k/a Brookhaven Memorial Hospital Medical Center.
McHenry, Horan Lapping, P.C., Syosset, N.Y. (Lynne B. Prommersberger of counsel), for respondents Steven Shepherd and Robert N. Prochep.
Lewis, Johs, Avallone, Aviles Kaufman, LLP, Melville, N.Y. (Patrick G. Toner of counsel), for respondent Julia Ann Fahey.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the orders are affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
The plaintiffs maintain that the Supreme Court erred in appointing a private attorney as a Special Referee in contravention of CPLR 3104(b). In light of the fact that the plaintiffs failed to raise this issue until after the Special Referee's report was written and further discovery had concluded, the plaintiffs have waived their right to contest the appointment of the Special Referee ( see Dime Sav. Bank of N.Y. v. Glavey, 214 A.D.2d 419, lv denied 87 N.Y.2d 802, cert denied 517 U.S. 1221; Flotteron v. Steinberg, 106 A.D.2d 427; Fisher v. Fisher, 223 App. Div. 19, 21, affd 250 N.Y. 313).
The plaintiffs' remaining contentions are without merit.
FLORIO, J.P., S. MILLER, FRIEDMANN and LUCIANO, JJ., concur.