Opinion
August 23, 2001.
Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about November 29, 2000, which denied plaintiffs' motion for a protective order vacating plaintiff's prior counsel's consent to defendants' deposition of 14 out-of-State, non-party witnesses, and implicitly denied defendants' cross motion for an order compelling plaintiff to execute an authorization to release his records from a drug and alcohol treatment center, and for an order for commissions to take out-of-State depositions of eight additional witnesses, unanimously modified, on the law, the facts and in the exercise of discretion, to grant that portion of defendants' cross motion seeking to compel plaintiff to execute said authorization, and otherwise affirmed, without costs.
Philip Russotti, for plaintiffs-appellants.
Richard J. Shackelton, Jr., Ann M. Campbell, and Elizabeth Gelfand Kastner, for defendants-respondents.
Before: Nardelli, J.P., Tom, Mazzarelli, Saxe, Friedman, JJ.
The motion court properly denied plaintiffs' motion for a protective order to vacate their prior counsel's consent to the deposition of 14 out-of-State witnesses, located in Massachusetts, Florida and Washington D.C., since plaintiffs failed to demonstrate that counsel's consent to the depositions was vitiated by fraud, mistake, collusion or accident (see, Matter of Frutiger, 29 N.Y.2d 143, 150). Moreover, even if counsel had not consented to the depositions, plaintiffs' motion for a protective order would still be properly denied since the depositions were material and necessary to the defense of this complex medical malpractice action (see, CPLR 3101(a);Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 745-746).
The motion court should have granted that portion of the defendants' cross motion which sought an order compelling plaintiff to execute an authorization to release his records from a drug and alcohol treatment center located in Georgia. Such records should enable defendants' experts to reach appropriate medical conclusions as to whether there is a possible link between plaintiff's injuries and drug abuse (see, Manley v. New York City Hous. Auth., 190 A.D.2d 600, 601).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.