Appellate Division of the Supreme Court of New York, 1981

Kelly v. Shafiroff

Appellate Division of the Supreme Court of New York · Decided February 17, 1981

80 A.D.2d 601; 436 N.Y.S.2d 44; 1981 N.Y. App. Div. LEXIS 10292

Cases that cite this one

13 later published cases cite this decision.

Slabakis v. Drizin (Appellate Division of the Supreme Court of New York 1985)
Reilly v. County of Nassau (Appellate Division of the Supreme Court of New York 1985)
Mulvihill v. Mutual Benefit Life Insurance (Appellate Division of the Supreme Court of New York 1985)
Martinez v. State (N.Y. Ct. Cl. 1985)
Wiseman v. American Motors Sales Corp. (Appellate Division of the Supreme Court of New York 1984)
Witt v. Triangle Steel Products Corp. (Appellate Division of the Supreme Court of New York 1984)
In re the Estate of Laflin (Appellate Division of the Supreme Court of New York 1984)
Tavormina v. State (N.Y. Ct. Cl. 1984)
McKinney v. Bay Ridge Medical Group (Appellate Division of the Supreme Court of New York 1983)
Heitzman v. Abrahamson (Appellate Division of the Supreme Court of New York 1983)
Mogollon v. South African Marine Corp. (Appellate Division of the Supreme Court of New York 1981)
Gersten v. New York Hospital (Appellate Division of the Supreme Court of New York 1981)
Kelly v. Town of North Hempstead (Appellate Division of the Supreme Court of New York 1981)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In a medical malpractice action, defendant Benjamin Shafiroff appeals from so much of an order of the Supreme Court, Kings County, dated May 29, 1980, as denied the branch of his motion which sought to compel the plaintiff’s wife, who is a nonparty witness, to appear for an examination before trial. Order reversed insofar as appealed from, with $50 costs and disbursements, the third decretal paragraph is deleted therefrom, and the aforesaid branch of appellant’s motion is granted. The examination shall proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by appellant, or at such other time and place as the parties may agree. Special Term improvidently exercised its discretion by refusing to allow defendant Shafiroff to take the pretrial deposition of the plaintiff’s wife. The plaintiff has indicated that his wife will be called as a witness at trial to testify on his behalf. Further, the record reveals that *602she may have knowledge bearing on the issues of liability and damages. (See Sherwood, v Lilly & Co., 36 AD2d 533; Cello v Rinaldi, 35 AD2d 809; see, also, 3A Weinstein-Korn-Miller, NY Civ Prac, par 3101.32.) The fact that the plaintiff’s wife submitted an affidavit, pursuant to Special Term’s order, denying that she contributed to plaintiff’s injuries, is not, in our opinion, sufficient. A statement by a witness is by no means as functional as a formal deposition, and even the tendering of a voluntary statement by such a witness may not immunize the witness from a charge of hostility. (See Kenford Co. v County of Erie, 41 AD2d 586.) The showing by a lawyer, as here, that he needs a witness’ pretrial deposition in order to prepare fully for the trial, under the CPLR’s liberal rules of pleading, should suffice as “special circumstances”, pursuant to C-PLR 3101 (subd [a], par [4]). (See Kenford Co. v County of Erie, supra.) Mangano, J.P., Gibbons, Gulotta and O’Connor, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.