CPLR 3101(D)(1)(Iii) - Interpretation

In McCoy v. State of New York (52 AD3d 1212, 860 N.Y.S.2d 355 [4th Dept 2008]), the court held that the deposition of the nonparty witness was not precluded under CPLR 3101(d)(1)(iii) because he was designated as an expert witness for the other party involved in the automobile accident in a related action, while his testimony in McCoy action was sought only as a fact witness. CPLR 3101 (d)(1)(iii) states: Further disclosure concerning the expected testimony of any expert may be obtained only by court order upon showing of special circumstances and subject to restrictions as to scope and provisions concerning fees and expenses as the court may deem appropriate.