Jones v. Sherpa , 774 N.Y.S.2d 767 ( 2004 )

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated September 22, 2003, which granted the plaintiffs’ motion for leave to depose a nonparty witness, Thomas A. Corcoran, by videotape and stenographic record, to be used in lieu of his testimony at trial.

Ordered that the order is affirmed, with costs.

The plaintiffs’ motion for leave to depose their own treating physician, Thomas A. Corcoran, is not in the nature of discovery, and thus, the general rule foreclosing discovery after the filing of a note of issue (see 22 NYCRR 202.21 [d]) does not apply (see Beliavskaia v Perkin, 227 AD2d 246 [1996]; Hill v Sheehan, 154 AD2d 912 [1989]). Under the circumstances of this case, the plaintiffs were properly permitted to depose Dr. Corcoran, a physician who resides and practices in Pennsylvania (see CPLR 3101 [a] [3]), and to use his deposition testimony at trial as evidence-in-chief (see CPLR 3117 [a] [3] [ii]; [4]; Goldblatt v Avis Rent A Car Sys., 223 AD2d 670 [1996]).

The defendants contend that the Supreme Court lacked the authority to direct the taking of Dr. Corcoran’s deposition without issuing a commission designating a person pursuant to CPLR 3108. Contrary to the defendants’ contention, the Supreme Court was not required to formally designate a commissioner where, as here, the plaintiffs elected, without objection, to designate an officer pursuant to CPLR 3113 (a) (2) before whom the deposition would be taken (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3108:3, at 461; C3113:1, at 523; Weinstein-Korn-Miller, NY Civ Prac ¶ 3108.05; cf. Wiseman v American Motors Sales Corp., 103 AD2d 230, 235-236 [1984]).

The defendants’ remaining contention is unpreserved for appellate review. Prudenti, P.J., Florio, H. Miller, Schmidt and Cozier, JJ., concur.