Soifer v. Mount Sinai Hospital

In a medical malpractice action, defendant appeals from an order of the Supreme Court, Queens County, dated November 30, 1977, which (1) granted plaintiffs’ motion to compel discovery "of any and all incident reports pertaining to the occurrence alleged in the complaint in the treatment and care rendered to the plaintiff,1 Bruka Soifer” and (2) denied defendant’s cross motion for a protective order on the ground that defendant had not timely moved for such an order within the five-day period. Order reversed, with $50 costs and disbursements, motion denied and cross motion granted. Defendant’s failure to move for a protective order within five days after service of the notice for discovery and inspection, as provided for in CPLR 3122, is not an absolute bar to the granting of a motion for a protective order (Whittington v Rectors, Wardens & Vestry of Church of Advent, 54 AD2d 732). The matter sought by plaintiffs, furthermore, was demonstrably prepared for litigation; nor was it established that it cannot be duplicated or that its unavailability would presently result in injustice or undue hardship (see CPLR 3101, subd [d]). There is also the impediment or barrier of its being "privileged matter” (see CPLR 3101, subd [b]). Martuscello, J. P., Suozzi, Rabin and Hawkins, JJ., concur.