Opinion
February 3, 1986
Appeal from the Supreme Court, Westchester County (Beisheim, J.).
Order affirmed insofar as appealed from, with costs.
Special Term properly denied the branch of plaintiffs' motion which was to strike the answer of the defendant hospital or, alternatively, to direct the hospital to submit to a further examination before trial. It appears that the hospital has complied, to the extent possible, with plaintiffs' notice and with the prior orders directing it to submit to an examination before trial. However, most of the medical personnel having personal knowledge of decedent's case are no longer employed by the defendant hospital and it cannot be compelled to produce its former employees for an examination before trial (see, Frankel v French Polyclinic Med. School Health Center, 70 A.D.2d 947). Thus, plaintiffs must proceed to examine such persons in the manner provided for nonparty witnesses (CPLR 3106 [a]).
Finally, plaintiffs' claim that the order appealed from effectively overruled a prior order made by a court of coordinate jurisdiction is of no avail on this appeal, inasmuch as the doctrine of the "'law of the case'" does not bind an appellate court (Martin v. City of Cohoes, 37 N.Y.2d 162, 165; Wilson v McCarthy, 53 A.D.2d 860). Mangano, J.P., Bracken, Weinstein, Lawrence and Kooper, JJ., concur.