Plaintiff moves by Order to Show Cause for an Order: 1) pursuant to CPLR §§3123 and 3103, striking Plaintiff DIANE THOMAS’ (hereinafter referred to as “Plaintiff”) Notice of Deposition, dated July 27, 2023, on the grounds that Plaintiff’s Notice was served after the Note of Issue was filed and, as such, is legally ineffective and a nullity; 2) pursuant to CPLR §§3123 and 3103, granting the Defendant’s a Protective Order directing that Plaintiff’s improper Notice of Deposition, dated July 27, 2023, is a nullity to which no response and/or action is required and that the Notice of Deposition, dated July 27, 2023, may not be used in this action for any purpose; 3) prohibiting Plaintiff from producing their expert, Dr. William N. Levine (hereinafter referred to as “Dr. Levine”), for any deposition, examination before trial, or the like ahead of the trial, which is presently scheduled to begin on November 27, 2023; 4) alternatively, precluding Plaintiff from using the transcript of Dr. Levine at trial of this matter in lieu of live testimony; and, 5) together with such other and further relief as this Court deems just and proper. Plaintiff opposes the motion, and cross-moves for leave to depose Dr. Levine. This personal injury action arises from an alleged slip and fall accident that plaintiff alleges occurred on April 16, 2017, when she entered the bathroom of the AMC Bay Plaza Cinema 13 movie theatre located at 2210 Bartow Avenue in Bronx County. The plaintiff has filed a note of issue. On the eve of trial, the plaintiff seeks to depose plaintiff’s own treating physician, with the intent of employing the deposition at trial in lieu of live testimony. The defendant argues that a deposition of the plaintiff’s expert is improper after the filing of a note of issue. Further, defendants argue that allowing the plaintiff’s expert to be deposed and allowing the expert’s testimony to be used at trial, would deprive the defendant of its right to cross-examine the expert. The plaintiff’s motivations as stated on the cross-motion are: Dr. Levine’s schedule would make the scheduling of a trial complicated, as he is a practicing orthopedic surgeon with a busy operating room schedule who also serves as a team doctor for the Columbia University sports program; the cost of calling Dr. Levine for a day of trial testimony is exorbitant; Dr. Levine requires trial testimony to be scheduled long in advance and will not refund his retainer fee should a date need to be adjourned or adjusted. Plaintiff argues that the Legislature explicitly authorized the use of depositions of non-party witnesses who are authorized to practice medicine in this State notwithstanding their “unavailability” testify at a trial. (CPLR 3117). CPLR 3101(a)(3) provides, in part, as is here relevant, that there shall be full disclosure of “…a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness.” CPLR 32117(a)(4) provides “the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to section 3103 to prevent abuse.” It has been held that a plaintiff’s motion for leave to depose his or her own treating physician is not in the nature of discovery, and that the general rule barring discovery after the filing of a note of issue does not apply. (Goldblatt v. Avis Rent A Car Sys., 223 A.D.2d 670, 637 N.Y.S.2d 188 [1996]; Beliavskaia v. Perkin, 227 A.D.2d 246, 642 N.Y.S.2d 522 [1996]; Hill v. Sheehan, 154 A.D.2d 912, 545 N.Y.S.2d 868 [1989]). In addition, no special circumstances must be demonstrated. (Jones v. Gelbu Pemba Sherpa, 5 A.D.3d 634, 634, 774 N.Y.S.2d 767, 767 [2d Dept. 2004]; see, Calvao v. St. John’s Riverside Hosp., 261 A.D.2d 350, 351 [2d Dept 1999].) McKinney’s Practice Commentaries specifically state that a plaintiff may seek to depose his or her own expert so as to use that deposition at trial. The Commentaries provides: “The segment of CPLR 3101(a)(3) concerned specifically with physicians, dentists and podiatrists is the result of a 1979 amendment. The of-right deposition, even when sought by the patient-party, is authorized only with respect to one “who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness.” CPLR 3101(a)(3). Focusing our treatment here on the statute’s application to physicians, it permits the deposing of a physician as a matter of right when the elements of the statute are met. If they are, the physician’s deposition is permissible on that basis alone, i.e., no other showing from among the rest of the paragraph 3 list is needed. See Calvao v. St. John’s Riverside Hosp., 261 A.D.2d 350, 689 N.Y.S.2d 185 (2d Dep’t 1999). Conversely, if a nonparty physician happens to fall within one of the other categories in CPLR 3101(a)(3) or within CPLR 3101(a)(4), the deposition is authorized without resort to that segment of CPLR 3101(a)(3) that is specific to physicians. See Roeck v. Columbia-Greene Medical Center, 248 A.D.2d 921, 670 N.Y.S.2d 269 (3d Dep’t 1998) (defendant could take deposition of plaintiff’s doctor, who resided more than 100 miles from place of trial). “This language in CPLR 3101(a)(3) only authorizes the deposing of a party’s own physician. So, for example, the defendant may not obtain the plaintiff’s physician’s deposition under this provision, although the obtaining of a treating physician’s deposition may be possible under some other part of CPLR 3101(a)(3), or under CPLR 3101(a)(4). See Roeck, supra; Villano v. Conde Nast Publications, Inc., 46 A.D.2d 118, 361 N.Y.S.2d 351 (1st Dep’t 1974); Siegel & Connors, New York Practice, §345. This is all subject to the court’s power to issue a protective order under CPLR 3103(a), and the broad judicial discretion that resides there. “The deposition of a ‘person authorized to practice medicine’ resulting from this of-right provision relating specifically to physicians, or from the satisfaction of one of the other requirements of paragraph (3), or the requirements of paragraph (4), is admissible in evidence at the trial under CPLR 3117(a)(4) without the usual requirement of a preliminary foundation.” (Connor, Practice Commentaries, N.Y. C.P.L.R. 3101 [McKinney] [Emphasis added].) The authority cited above resolves the issue presented here — that the plaintiff may depose his or her own expert under CPLR 3101(a)(3), and that the deposition may be used at trial under CPLR 3117(a)(4). Further, the defendants have not demonstrated any prejudice as a result of following this procedure. Accordingly, it is ORDERED that all restraining orders are vacated and discontinued, and it is ORDERED that the motion is denied, and the cross-motion is granted, and it is ORDERED that the deposition of Dr. Levine shall proceed on a mutually agreeable date, time and place. This constitutes the Decision and Order of the Court.
