Opinion
CA 02-00099
June 14, 2002.
Appeal from an order of Supreme Court, Erie County (Whelan, J.), entered October 17, 2001, which, inter alia, denied plaintiffs' motion seeking to compel defendant Buffalo Thoracic Surgical Associates, P.C. to produce two physician's assistants for depositions.
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
ROACH, BROWN, McCARTHY GRUBER, P.C., BUFFALO (J. MARK GRUBER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., PINE, HAYES, WISNER, AND HURLBUTT, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of plaintiffs' motion seeking to compel defendant Buffalo Thoracic Surgical Associates, P.C. to produce two physician's assistants for depositions and denying the cross motion of defendants Buffalo Thoracic Surgical Associates, P.C. and LuJean Jennings, M.D. and as modified the order is affirmed without costs.
Memorandum:
Supreme Court abused its discretion in denying that part of plaintiffs' motion seeking to compel defendant Buffalo Thoracic Surgical Associates, P.C. (Buffalo Thoracic) to produce two physician's assistants for depositions and in granting the cross motion of Buffalo Thoracic and defendant LuJean Jennings, M.D. for a protective order with respect to the depositions of those witnesses. Plaintiffs allege in the complaint that defendants and "the staff and personnel" of Buffalo Thoracic were negligent with respect to, inter alia, their "related follow up care and treatment" following the surgery performed on Richard Fronczak (plaintiff) by defendant Joseph A. Zizzi, Jr., M.D. Plaintiffs established that the two physician's assistants, both of whom were employed by Buffalo Thoracic, assisted Dr. Jennings during surgery performed on plaintiff the day after the surgery performed by Dr. Zizzi and provided follow-up care for plaintiff. Plaintiffs thus established that there is a substantial likelihood that the physician's assistants possess information bearing on the controversy that will assist plaintiffs in preparing for trial ( see Barbara v. Brunswick Hosp. Ctr., 172 A.D.2d 792, 793; Heil v. Nassau Hosp., 99 A.D.2d 482; Gregoritsch v. Mather Mem. Hosp., 88 A.D.2d 987, 988; see generally CPLR 3101 [a] [1]). We therefore modify the order accordingly.