Plummer v. R. H. Macy & Co. , 414 N.Y.S.2d 921 ( 1979 )

Fein, J.,

concurs in a memorandum as follows: I concur in result. However I would add the following: The only basis on which plaintiff would be entitled to examine the physician nonparty witness would be pursuant to CPLR 3101 (subd [a], par [4]), which authorizes disclosure by a nonparty witness only "where the court on motion determines that there are adequate special circumstances.” As I have previously noted, in my view the statute does not authorize plaintiff’s service of a subpoena to depose a witness without first obtaining an order directing the examination. (Bonito Mar. Corp. v St. Paul Mercury Ins. Co., 68 AD2d 864). This case clearly demonstrates the need for obtaining an order first, as required by the statute. The doctor had furnished the attorney with a report. Although that report was perfunctory, it was a response. The plaintiff’s attorney’s position was that he was entitled to a more detailed report without payment of the fee demanded by the doctor. In the face of this impasse and without any showing that there were adequate special circumstances, plaintiffs attorney served the subpoena to examine the doctor and his corporation as third-party witnesses. I note that the fee paid at the time of service amounted to one subpoena fee although the subpoena directed the attendance of the doctor and the corporation. There followed the events described in the court’s memorandum. The requisite application on notice demonstrating special circumstances under CPLR 3101 (subd [a], par [4]) would have avoided the procedural quagmire. Plaintiff should be required to make such an application on a proper showing, not yet made.