Villano v. Conde Nast Publications, Inc. ( 1974 )

Kupferman, J. (dissenting in part).

While I am in accord with the court’s analysis which permits deposing the two physicians who are nonparty witnesses, I would follow up on the indication that an attempt should be made to avoid the. burden imposed on the physicians’ medical practice because of the time that would be involved in the depositions. The evidentiary information to be obtained from them relates solely to the issue of damages. (See Right of Privacy by Hofstadter and Horowitz [Central Book Co., 1964], ch. 24.) Until the claim is established, there is no need for this information. (Cf. Barnett Robinson, Inc. v. Staal, Inc., 43 A D 2d 826 [1st Dept., 1974]; Alderman v. Eagle, 41 A D 2d 641 [2d Dept., 1973].)

Under CPLR 603, there can be a prior separate trial of the liability issue. (See Mercado v. City of New York, 25 A D 2d 75 [1st Dept., 1966].)

Murphy and Lane, JJ., concur with Lupiano, J.; Nunez, J. P., and Kupferman, J., dissent in part in an opinion by Kupferman, J.

Order, Supreme Court, New York County, entered on July 19, 1974, reversed, on the law and on the facts, without costs and without disbursements, the motion granted, and the examinations should be held at such time and place as agreed upon by the parties in accordance with the observations expressed in the opinion of this court filed herein and, in the absence of agreement, application may be made to Special Term to set an appropriate time and place.