| Swezey v Montague Rehab & Pain Mgt., P.C. |
| 2011 NY Slip Op 03831 [84 AD3d 779] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Maria Swezey, Appellant, v Montague Rehab & PainManagement, P.C., et al., Defendants, and Shama Rasool et al.,Respondents. |
—[*1] Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler, Steven M.Kaye, Jr., and Stephen Barrett of counsel), for respondent Shama Rasool. Helwig, Henderson, Ryan & Spinola, Carle Place, N.Y. (Robert L. Ryan, Jr., of counsel), forrespondents Daniel Faierman, individually and doing business as Queens Diabetic Center andQueens Diabetic Center. Kaufman Borgeest & Ryan, LLP, Garden City, N.Y. (Joseph D. Furlong of counsel), forrespondent Carlos A. Garcia, individually and doing business as Queens DiabeticCenter.
In a consolidated action to recover damages for medical malpractice, the plaintiff appealsfrom (1) an order of the Supreme Court, Queens County (Hart, J.), dated October 30, 2009,which granted the separate motions in limine, made during jury selection, of the defendantShama Rasool, the defendants Daniel Faierman, individually and doing business as QueensDiabetic Center and Queens Diabetic Center, and the defendant Carlos Garcia, individually anddoing business as Queens Diabetic Center, to preclude the testimony of the plaintiff's expert andto dismiss the complaint insofar as asserted against each of those defendants, and (2) a judgmentof the same court entered November 24, 2009, which, upon the order, is in favor of thosedefendants and against her, dismissing the complaint insofar as asserted against each of thosedefendants.
Ordered that the appeal from the order is dismissed, and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately and filingseparate briefs.
The appeal from the intermediate order must be dismissed because the order concernsevidentiary rulings which, even when made in advance of trial on motion papers, are notappealable, either [*2]as of right or by permission (seeCPLR 5701; Barnes v Paulin,52 AD3d 754 [2008]; Citlak vNassau County Med. Ctr., 37 AD3d 640 [2007]; Cotgreave v Public Adm'r ofImperial County [Cal.], 91 AD2d 600, 601 [1982]). The issues raised on the appeal from theintermediate order are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]; Rosenfeld v Baker, 78 AD3d 810 [2010]).
The Supreme Court providently exercised its discretion in precluding the plaintiff's treatingphysician, her only expert, from testifying at trial. The plaintiff failed to serve the physician'smedical report upon the respondents and did not demonstrate good cause for the admission of histestimony (see 22 NYCRR 202.17 [g], [h]; Berson v Chowdhury, 251 AD2d 278[1998]; see also Diarassouba vUrban, 24 AD3d 602, 604 [2005]; Burns v McCabe, 17 AD3d 1111, 1112 [2005]; cf. Shichman v Yasmer, 74 AD3d1316, 1318 [2010]; Neils vDarmochwal, 6 AD3d 589, 590 [2004]). Since the plaintiff would not have been able toestablish a prima facie case without the testimony of her only medical expert, the complaint wasproperly dismissed as to the defendants in question (see Deadwyler v North Shore Univ. Hosp. at Plainview, 55 AD3d780, 781 [2008]; Reid v Rye Ridge Orthopedic Assoc., 268 AD2d 574 [2000];Reed v Episcopal Health Servs., 269 AD2d 514, 514 [2000]; Giambona v Stein,265 AD2d 775, 775-776 [1999]; Lyons v McCauley, 252 AD2d 516, 517 [1998]).Mastro, J.P., Rivera, Austin and Roman, JJ., concur.