Rodriguez v. Galin

Order, Supreme Court, New York County (Joan B. Carey, J.), entered May 26, 2004, which denied the motions for summary judgment by third-party defendant Gould and defendant Freedman, unanimously affirmed, without costs.

There is sufficient evidence in the record of this medical malpractice action to demonstrate the existence of triable issues of fact as to the moving doctors’ participation in plaintiffs eye surgery. Notwithstanding defendant and third-party plaintiff Galin’s frequent invocation of his Fifth Amendment right against self-incrimination during the course of his deposition, the motion court did not err in declining to dismiss the third-party complaint. The trial court may still direct the pro se Dr. Galin to make himself available for further deposition prior to commencement of trial of the third-party action. In the event *189he should continue refusing to testify, the court can take appropriate steps at that time (see Federal Chandros v Silverite Constr. Co., 167 AD2d 315, 316 [1990], appeal dismissed and lv denied 77 NY2d 893 [1991]).

We have considered appellants’ other arguments and find them unavailing. Concur—Tom, J.P., Mazzarelli, Friedman, Gonzalez and Sweeny, JJ.