Opinion
10954N Index 21863/12E
02-04-2020
Hector NEWELL, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
G. Wesley Simpson PC, Brooklyn (G. Wesley Simpson of counsel), for appellant. Georgia M. Pestana, Acting Corporation Counsel, New York (Ellen Ravitch of counsel), for respondents.
G. Wesley Simpson PC, Brooklyn (G. Wesley Simpson of counsel), for appellant.
Georgia M. Pestana, Acting Corporation Counsel, New York (Ellen Ravitch of counsel), for respondents.
Friedman, J.P., Renwick, Manzanet–Daniels, Singh, Gonzlez, JJ.
Order, Supreme Court, Bronx County (George J. Silver, J.), entered November 8, 2018, which, in this action alleging medical malpractice, denied plaintiff's motion to extend the time to file a note of issue, to compel defendants to produce two additional physicians for deposition and to produce documentation of physician work schedules, unanimously affirmed, without costs.
The court exercised its discretion in a provident manner in declining to compel depositions of two physicians, in addition to those already conducted of defendants Drs. Stone and Tepperman. Plaintiff's showing was not sufficiently detailed to demonstrate that the already-deposed witnesses had insufficient knowledge, and that those sought to be deposed have information that is material and necessary to plaintiff's action (see Epperson v. City of New York, 133 A.D.3d 522, 523, 21 N.Y.S.3d 23 [1st Dept. 2015] ; Colicchio v. City of New York, 181 A.D.2d 528, 529, 581 N.Y.S.2d 36 [1st Dept. 1992] ). There also exists no basis to disturb the court's discovery rulings, since plaintiff failed to show how the other discovery items he requested were material and necessary (see Forman v. Henkin, 30 N.Y.3d 656, 661, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] ; Don Buchwald & Assoc. v. Marber–Rich, 305 A.D.2d 338, 761 N.Y.S.2d 617[1st Dept. 2003).
Plaintiff's argument that he has the right to depose additional witnesses pursuant to a stipulation is made for the first time in his reply brief (see e.g. Matter of Erdey v. City of New York, 129 A.D.3d 546, 11 N.Y.S.3d 592 [1st Dept. 2015] ). In any event, the argument is unavailing.
We have considered plaintiff's remaining arguments and find them unavailing.