Bilhorn v. Lipman

Order unanimously modified in accordance with the following memorandum and, as modified, affirmed, with costs to appellants. Memorandum: In this personal injury action brought against a physician, defendant Lipman, a pharmacy, defendant Clinton Drugs, and a drug manufacturer, defendant Smith-Kline Laboratories, plaintiffs appeal an order which denied their motion for production of the transcript of a meeting held at defendant Smith-Kline Laboaratories on September 30, 1957. An earlier protective order limited production of documents to those made between January 17, 1965, three years before plaintiffs’ first prescription for the drug in question, and February 15, 1972, the date of alleged injury by the drug. Plaintiffs did not appeal from the prior protective order and defendants assert that the doctrine of law of the case required denial of the present motion. This motion was made neither to renew nor to reargue the prior motion; however, the court, by its adherence to its original decision, impliedly granted reargument. Consequently, the present order superseded the original order and it is appealable (Dennis v Stout, 24 AD2d 461). Therefore the propriety of the court’s ruling is properly before us. Inasmuch as the document in question may be relevant and material to the issue of defendant Smith-Kline’s knowledge of the dangerousness of the drug, the order should be modified to the extent of allowing discovery of this document (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406-407). (Appeal from order of Monroe Supreme Court-art 78.) Present-Moule, J. P., Simons, Dillon, Hancock, Jr., and Schnepp., JJ.