Opinion
April 10, 1989
Appeal from the Supreme Court, Nassau County (Roberto, J.).
Ordered that on the court's own motion, the appellants' notice of appeal is treated as an application for leave to appeal, the application is referred to Justice Harwood, and leave to appeal is granted by Justice Harwood (CPLR 5701 [b] [1]); and it is further,
Ordered that the order is reversed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Nassau County, to rule on objections to questions propounded at the continued examination before trial of the nonparty witness.
This action is premised on damages allegedly sustained by the infant plaintiff while in utero. The nonparty witness, a partner of the defendant physicians at the time the infant plaintiff's mother was their patient, is entitled to refuse to answer questions which seek testimony in the nature of opinion evidence (see, Wilson v. McCarthy, 53 A.D.2d 860). However, rather than rule on the propriety of the questions and lines of questioning to which the witness's counsel objected, the Supreme Court, in determining that branch of the plaintiffs' formal motion which was to compel the witness to answer questions, prospectively limited the scope of the plaintiffs' inquiry by providing that the witness "is compelled to answer only questions regarding his treatment on his patient Maureen Horowitz * * * [p]laintiff's counsel is directed to make every effort to avoid questions concerning treatment of other patients specifically or in general, treatment by his former partners, his present opinions or practices and knowledge, or opinions of the pharmaceutical promotional practices and representations". We reverse and remit the matter to the Supreme Court to make the rulings to which the parties are entitled (see, White v Martins, 100 A.D.2d 805).
It is well settled that the scope of examination permissible at deposition is broader than the scope of examination permissible at trial (see, Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403; Wiseman v. American Motors Sales Corp., 103 A.D.2d 230, 237). Moreover, the witness, in his capacity as a physician, may possess knowledge of discoverable facts which goes beyond that which is derived from his direct contact with the infant plaintiff's mother. The Supreme Court therefore improvidently exercised its discretion when it, in effect, prospectively limited the scope of examination to the witness's treatment of the infant plaintiff's mother (cf., White v. Martins, 100 A.D.2d 805, supra). Mollen, P.J., Mangano, Brown and Harwood, JJ., concur.