Pauzar v. Children's Hospital of Buffalo

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In this medical malpractice action, Supreme Court did not abuse its discretion in ordering an open commission to take the testimony of Dr. Toyama, an out-of-State, nonparty witness (see, CPLR 3108; see also, Stanzione v Consumer Bldrs., 149 AD2d 682; Wynkoop v County of Nassau, 139 AD2d 731; Wiseman v American Motors Sales Corp., 103 AD2d 230). Nor did the court err in ordering that the expenses incurred in obtaining such testimony be shared equally among the participating parties (see, 3A Weinstein-Korn-Miller, NY Civ Prac If 3108.06). To the extent, however, that the order can be interpreted to grant plaintiffs motion seeking that Dr. Toyama’s fee of $205 per hour be assessed equally among all parties, it is in error. Such fees may not be assessed in excess of those authorized in CPLR 8001 (see, Marcus v New York City Hous. Auth., 80 AD2d 844; see also, Matter of Board of Educ. v Ambach, 90 AD2d 227, 241-242, affd 60 NY2d 758, cert denied 465 US 1101). (Appeal from order of Supreme Court, Erie County, Gossel, J.—discovery.) Present—Dillon, P. J., Doerr, Pine, Lawton and Davis, JJ.