Ferrer v. Horvath

In an action to- recover damages for medical malpractice, the defendants appeal from so much of an order of the Supreme Court, Kings County (Scholnick, J.), dated November 24, 1986, as denied that branch of their motion which was for an order authorizing issuance of a subpoena for the taking of the deposition of a nonparty witness. Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. The record before us fails to establish that disclosure, as [628] ordered by the Supreme Court, of the records and reports of and X rays taken by Marvin Shelton, a physician who treated the plaintiff subsequent to the treatment underlying this medical malpractice action, is insufficient to enable the defendants to properly prepare for trial (see, Shapiro v Levine, 104 AD2d 800, 801; Panteleo v Sacca, 64 AD2d 696). We therefore cannot say that the Supreme Court improvidently exercised its discretion when it declined to also authorize issuance of a subpoena for the taking of that physician’s deposition (cf., CPLR 3101 [a] [4]). Hooper, J. P., Sullivan, Harwood and Balletta, JJ., concur.