Josephson v. Cohen

In an action to recover damages predicated, inter alia, upon medical malpractice, defendant Denah Harris appeals from an order of the Supreme Court, Nassau County, dated November 1, 1976, which denied her motion to compel plaintiff to respond to her interrogatories. Order affirmed, without costs or disbursements. Although this complaint is couched in terms of breach of contract, we agree with Special Term that it is, in essence, one involving medical malpractice. As such, it falls within the express language of CPLR 3130, which exempts, inter alia, personal injury actions founded in negligence from those actions in which interrogatories are permitted (see Allen v Minskoff, 46 AD2d 918, affd 38 NY2d 506). Cohalan, J. P., Damiani, Rabin and Titone, JJ., concur.