Citation Numbers: 23 A.D.3d 281, 808 N.Y.S.2d 6
Filed Date: 11/22/2005
Status: Precedential
Modified Date: 11/1/2024
Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered June 21, 2004, which, in an action for medical malpractice seeking to recover, on behalf of the infant plaintiff, for personal injuries sustained during her birth, and on behalf of plaintiff mother, the “fair value of the extraordinary care” the infant will require, insofar as appealed from as limited by the briefs, denied defendants’ motions to strike the note of issue and compel a further deposition of the mother, unanimously modified, on the law and the facts, to strike the note of issue and direct a further deposition of the mother in accordance with the decision herein, and otherwise affirmed, without costs.
While defendants’ motion for a further deposition was, in effect, an application to compel the mother to answer questions at her deposition to which she had objected, and although the denial of such a motion is not appealable as of right (Caraballo v New York Hosp., 170 AD2d 190 [1991]), we sua sponte deem the notice of appeal to be an application pursuant to CFLR 5701 (c) for leave to appeal, and grant such leave. Upon the basis of evidence that the infant’s deficits could relate to her exposure in útero to teratogen, defendants seek further disclosure relating to the mother’s drug use. Notably, that evidence comes not only from defendants’ examining physician but also from the infant’s treating physician. Clearly, the mother’s drug use during her pregnancy is material and necessary and otherwise disclosable (see Napoleoni v Union Hosp. of Bronx, 207 AD2d 660 [1994]). So too is her treatment for prescription drug abuse, where the records relating thereto, although