Calvao v. St. John's Riverside Hospital , 689 N.Y.S.2d 185 ( 1999 )

—In an action to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Westchester County (Rosato, J.), entered April 20, 1998, as granted the motion of the nonparty witness Syed M. Shariff for a protective order quashing a subpoena and notice of deposition served upon him by the plaintiffs, and (2) so much of an order of the same court, entered September 21, 1998, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order entered April 20, 1998, is dismissed, as that order was superseded by the order entered September 21, 1998, made upon reargument; and it is further,

Ordered that the order entered September 21, 1998, is reversed insofar as appealed from, on the law, the order entered April 20, 1998, is vacated, and the motion for a protective order quashing the subpoena and notice of deposition served upon the nonparty witness by the plaintiffs is denied; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The nonparty witness Syed M. Shariff was the pediatrician who attended the delivery of the infant plaintiff and treated her from the time of her birth until she was transferred to another hospital. Consequently, the plaintiffs were entitled to depose him and no showing of “special circumstances” was required (CPLR 3101 [a] [3]). Although the applicability of CPLR 3101 (a) (3) was raised for the first time on appeal, the issue can be reviewed because it is one of law which appears on the face of the record and could not have been avoided if raised at the proper juncture (see, Block v Magee, 146 AD2d 730).

In light of our determination, it is unnecessary to address the plaintiffs’ remaining contention. Altman, J. P., Goldstein, Florio and McGinity, JJ., concur.