Mackey v. Holy Family Hospital

John E. Cone, J.

In this action for alleged malpractice defendant Pirudini moves for an order vacating plaintiff’s demand for a copy of the report by defendant’s examining physician.

Defendant, in his moving papers, asserts that the exchange of medical information is not provided for in malpractice cases (Special Rules of the Appellate Division, Second Department, part IV).

CPLR 3121 (subd. [b]), encompassing many more actions than did former section 306 of the Civil Practice Act, provides for the exchange of a “ detailed written report of the examining physician setting out his findings and conclusions ”. (See Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3121.01.)

CPLR 101, as herein pertinent, provides that “ The civil practice law and rules shall govern the procedures * * # in

all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute. ’ ’ The enactment of this section under the circumstances apparently supersedes such special rule. (See Fiore v. Bay Ridge Sanitarium, 48 Misc 2d 318 and the cases cited therein.)

The court is mindful of the decision of Griffin v. Jewish Hosp. of Brooklyn (20 A D 2d 563) upholding the special rules of the Appellate Division hereinabove mentioned. However, in the cited case the appeal was from an order made prior to the effective day of CPLR 101 and 3121 (subd. [b]) and accordingly was not considered therein. Accordingly, the motion is denied.