Kaplan v. Herbstein — 175 A.D.2d 200

Majority

p. 200

Linda Kaplan, as Executrix of Joel Kaplan, Deceased, Respondent, v Diego Herbstein et al., Defendants, and Gregory Carsen et al., Appellants.

— In an action .to recover damages for medical malpractice, etc., the defendants Gregory Carsen, Gregory Carsen, M.D., P.C., Barry Held, Robert Meisell, Alex Tallis, Lawrence Schechter and William Wolff appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Graci, J.), entered September 28, 1989, as denied their motion for a protective order as to demand No. 1 of the plaintiff’s notice for discovery and inspection.

Ordered that the order is affirmed insofar as appealed from, with costs.

It is well settled that the supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court (see, Matter of U. S. Pioneer Elec. Corp. [Nikko Elec. Corp.], 47 NY2d 914 , 916; Boylin v Eagle Telephonies, 130 AD2d 538 ) and, absent an improvident exercise of that discretion, its determination will not be disturbed (see, Cable v IBM Corp., 101 AD2d 799 ; see also, PCB Piezotronics v Change, 163 AD2d 829 ). We find that no improvident exercise of discretion has been demonstrated in the instant matter. The fee schedule information contained in the contract sought by the plaintiff may be material and

p. 201

relevant to determining the degree of control exercised by the defendant Booth Memorial Medical Center over the radiology group headed by the appellant Barry Held. The group also apparently included the appellants Robert Meisell, Alex Tallis, Lawrence Schechter, and William Wolff. This information may, therefore, bear upon the issue of Booth Memorial Medical Center’s vicarious liability for the negligence of an individual member of the radiology group (see, Kavanaugh v Nussbaum, 71 NY2d 535 , 547; Hill v St. Clare’s Hosp., 67 NY2d 72 , 79; Mertsaris v 73rd Corp., 105 AD2d 67 , 80; Mduba v Benedictine Hosp., 52 AD2d 450 ). Accordingly, the order is affirmed insofar as appealed from. Thompson, J. P., Eiber, Balletta and Ritter, JJ., concur.

Cases cited

In re U. S. Pioneer Electronics Corp. 47 NY2d 914 N.Y. 1979-06-26 at 916 p. 200
Kavanaugh v. Nussbaum 71 NY2d 535 N.Y. 1988-03-29 at 547 p. 201
Hill v. St. Clare's Hospital 67 NY2d 72 N.Y. 1986-02-19 at 79 p. 201
Mertsaris v. 73rd Corp. 105 AD2d 67 N.Y. App. Div. 1984-12-17 at 80 p. 201
Mduba v. Benedictine Hospital 52 AD2d 450 N.Y. App. Div. 1976-06-17 p. 201