SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
December 31, 2008
PETER B. KANE, M.D., PLAINTIFF-APPELLANT-RESPONDENT,
SHAPIRO, ROSENBAUM, LIEBSCHUTZ, AND NELSON, L.L.P., DEFENDANT-RESPONDENT-APPELLANT.
Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered March 7, 2008. The order, inter alia, granted in part plaintiff's motion seeking disclosure sanctions.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: MARTOCHE, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in its entirety and as modified the order is affirmed without costs.
Plaintiff commenced this action seeking to recover fees allegedly due from defendant law firm for his services as an expert witness in a medical malpractice action, and defendant asserted a counterclaim seeking the contingent legal fees that it allegedly lost as a result of plaintiff's expert testimony in the underlying action. Supreme Court erred in granting in part plaintiff's motion seeking disclosure sanctions by directing defendant to provide plaintiff with that portion of the trial transcript in the underlying action consisting of the direct testimony of plaintiff as well as his testimony on cross-examination. The affidavit submitted by plaintiff's attorney in support of the motion failed to demonstrate "that counsel has conferred with counsel for [defendant] in a good faith effort to resolve the issues raised by the motion" (Uniform Rules for Trial Cts [22 NYCRR] § 202.7 [a] ; see Amherst Synagogue v Schuele Paint Co., Inc., 30 AD3d 1055, 1056-1057). In addition, the portion of the trial transcript sought by plaintiff is equally available to both parties, and plaintiff has the responsibility to obtain it if he believes that it is necessary to his defense of the counterclaim (see generally CPLR 3101 [a]; Rios v Donovan, 21 AD2d 409, 411). We thus conclude that plaintiff's motion should have been denied in its entirety (see Gordon v Hancock, 292 AD2d 858), and we therefore modify the order accordingly.
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