| Sorrentino v Fedorczuk |
| 2011 NY Slip Op 05044 [85 AD3d 759] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Maria Sorrentino et al., Respondents, v WilliamFedorczuk, Appellant. |
—[*1] Davis & Hersh, LLP, Islandia, N.Y. (Jennifer L. DeVenuti of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Baisley, Jr., J.), dated November 5, 2010, which denied hismotion to depose nonparty witness Michael Brooks upon an open commission pursuant to CPLR3108.
Ordered that the order is modified, on the law and in the exercise of discretion, by addingthereto the words "without prejudice to renewal" following the words "is denied" contained in thefirst sentence of the last paragraph thereof; as so modified, the order is affirmed, without costs ordisbursements.
Approximately 15 months after the filing of the note of issue, the plaintiffs served anamended bill of particulars alleging new or additional injuries, including reflex sympatheticdystrophy, sustained by the plaintiff Christine Napolitano (hereinafter the plaintiff) as a result ofthe subject motor vehicle accident. The defendant moved for the issuance of an open commissionpursuant to CPLR 3108 to take the out-of-state deposition of nonparty witness Michael Brooksregarding his failure to produce the plaintiff's prior medical records maintained by his office.Those medical records are discoverable to the extent that they relate to similar injuries ortreatment (see Sadicario v Stylebuilt Accessories, 250 AD2d 830, 831 [1998]; Zappiv Pedigree Ski Shop, 244 AD2d 331 [1997]). Furthermore, the defendant demonstrated that"unusual or unanticipated circumstances" developed subsequent to the filing of the note of issuejustifying additional discovery (22 NYCRR 202.21 [d]; Karakostas v Avis Rent A CarSys., 306 AD2d 381, 382 [2003]; cf. Schenk v Maloney, 266 AD2d 199 [1999]).
A commission may be issued where "necessary or convenient" for the taking of a depositionoutside of the State (CPLR 3108). The defendant alleged that Dr. Brooks is retired from thepractice of medicine and resides in Florida. However, the defendant failed to demonstrate thatDr. Brooks will not cooperate with a notice of deposition pursuant to CPLR 3109 or will notvoluntarily come within this State or that "the judicial imprimatur accompanying a commissionwill be necessary or helpful when the [designee] seeks the assistance of the foreign court incompelling the witness to attend the examination" (Wiseman v American Motors SalesCorp., 103 AD2d 230, 235 [1984]; see Susan A. v Steven J. A., 141 [*2]AD2d 790, 791 [1988]). Since the defendant failed to establish thata commission is "necessary or convenient" (see Reyes v Riverside Park Community [Stage I], Inc., 59 AD3d219 [2009]; McCoy v State of NewYork, 52 AD3d 1212 [2008]; Wiseman v American Motors Sales Corp., 103AD2d at 235), the motion was properly denied, but should have been denied without prejudice toa renewal of the motion upon the requisite showing that a commission is necessary or convenient(see Susan A. v Steven J. A., 141 AD2d at 791). Rivera, J.P., Angiolillo, Eng, Chambersand Sgroi, JJ., concur.