| Kane v Shapiro, Rosenbaum, Liebschutz, & Nelson, L.L.P. |
| 2008 NY Slip Op 10422 [57 AD3d 1513] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Peter B. Kane, M.D., Appellant-Respondent, v Shapiro, Rosenbaum,Liebschutz, and Nelson, L.L.P., Respondent Appellant. |
—[*1] Boylan, Brown, Code, Vigdor & Wilson, LLP, Rochester (Sanford R. Shapiro of counsel), fordefendant-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Anthony J.Paris, J.), entered March 7, 2008. The order, inter alia, granted in part plaintiff's motion seekingdisclosure sanctions.
It is hereby ordered that the order so appealed from is unanimously modified on the law by denyingthe motion in its entirety and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover fees allegedly due fromdefendant law firm for his services as an expert witness in a medical malpractice action, and defendantasserted a counterclaim seeking the contingent legal fees that it allegedly lost as a result of plaintiff'sexpert testimony in the underlying action. Supreme Court erred in granting in part plaintiff's motionseeking disclosure sanctions by directing defendant to provide plaintiff with that portion of the trialtranscript in the underlying action consisting of the direct testimony of plaintiff as well as his testimony oncross-examination. The affidavit submitted by plaintiff's attorney in support of the motion failed todemonstrate "that counsel has conferred with counsel for [defendant] in a good faith effort to resolvethe issues raised by the motion" (Uniform Rules for Trial Cts [22 NYCRR] § 202.7 [a] [2]; see Amherst Synagogue v Schuele Paint Co.,Inc., 30 AD3d 1055, 1056-1057 [2006]). In addition, the portion of the trial transcript soughtby plaintiff is equally available to both parties, and plaintiff has the responsibility to obtain it if hebelieves that it is necessary to his defense of the counterclaim (see generally CPLR 3101[a]; Rios v Donovan, 21 AD2d 409, 411 [1964]). We thus conclude that plaintiff's motionshould have been denied in its entirety (see Gordon v Hancock, 292 AD2d 858 [2002]), andwe therefore modify the order accordingly. Present—Martoche, J.P., Smith, Centra, Green andPine, JJ.