Opinion
2003-07414.
Decided June 1, 2004.
In an action, inter alia, to recover damages for wrongful death, the defendant Lund Fire Products Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated July 18, 2003, as denied its motion, in effect, to compel the depositions of two engineers employed by nonparty expert witness American Standards Testing Bureau, Inc.
Hodgson Russ, LLP, New York, N.Y. (Lawrence R. Bailey, Jr., of counsel), for defendant third-party plaintiff second third-party plaintiff-appellant.
Wallace D. Gossett (Steve S. Efron, New York, N.Y., of counsel), for third third-party defendant-respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, with costs, and the motion is granted.
The respondent, New York City Transit Authority, hired American Standards Testing Bureau, Inc. (hereinafter American Standards), to conduct an independent test of a token booth fire detection and extinguishing system to complete a fire-bombing investigation by its Office of System Safety. By compliance conference order dated March 11, 2003, the Supreme Court designated American Standards as the respondent's expert witness and stated that the appellant was not entitled to depose this witness. The appellant then moved to compel the depositions of two engineers employed by American Standards. The Supreme Court denied the motion.
Contrary to the appellant's contention, the Supreme Court properly designated American Standards as a nonparty expert witness even though it was not originally hired for the purpose of providing expert testimony at trial ( see Flex-O-Vit USA, v. Niagara Mohawk Power Corp., 281 A.D.2d 980; Russo v. Quincy Mut. Fire Ins. Co., 256 A.D.2d 1164; see e.g. Brooklyn Floor Maintenance Co. v. Providence Wash. Ins. Co., 296 A.D.2d 520). Therefore, because the deposition of a nonparty expert was at issue, the appellant was required to show the existence of special circumstances ( see CPLR 3101[d][1][iii]; Brooklyn Floor Maintenance Co. v. Providence Wash. Ins. Co., supra; Hallahan v. Ashland Chem. Co., 237 A.D.2d 697; Weinberger v. Lensclean, Inc., 198 A.D.2d 58; King v. State Farm Mut. Auto. Ins. Co., 198 A.D.2d 748). The appellant satisfied its burden by showing that some of the pieces of equipment examined by American Standards for the respondent were subjected to changes. Accordingly, the Supreme Court improvidently exercised its discretion in denying the appellant's motion to compel the depositions of two engineers employed by American Standards ( see RPM, Inc. v. Pentagon Chem. Paint Works, 114 A.D.2d 1025).
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and MASTRO, JJ., concur.