Opinion
November 16, 1990
Appeal from the Supreme Court, Erie County, Gossel, J.
Present — Dillon, P.J., Doerr, Pine, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In this medical malpractice action, Supreme Court did not abuse its discretion in ordering an open commission to take the testimony of Dr. Toyama, an out-of-State, nonparty witness (see, CPLR 3108; see also, Stanzione v. Consumer Bldrs., 149 A.D.2d 682; Wynkoop v. County of Nassau, 139 A.D.2d 731; Wiseman v. American Motors Sales Corp., 103 A.D.2d 230). Nor did the court err in ordering that the expenses incurred in obtaining such testimony be shared equally among the participating parties (see, 3A Weinstein-Korn-Miller, N Y Civ Prac ¶ 3108.06). To the extent, however, that the order can be interpreted to grant plaintiff's motion seeking that Dr. Toyama's fee of $205 per hour be assessed equally among all parties, it is in error. Such fees may not be assessed in excess of those authorized in CPLR 8001 (see, Marcus v. New York City Hous. Auth., 80 A.D.2d 844; see also, Matter of Board of Educ. v. Ambach, 90 A.D.2d 227, 241-242, affd. 60 N.Y.2d 758, cert. denied 465 U.S. 1101).