Morton v. Brookhaven Memorial Hospital

—In an action to recover damages for medical malpractice, the plaintiffs appeal (1), by permission, from an order of the Supreme Court, Suffolk County (Costello, J.), dated January 23, 2001, which, sua sponte, directed the appointment of a special referee to supervise and direct all discovery, (2) from an order of the same court dated March 7, 2001, which, inter alia, granted the plaintiffs’ motion to compel discovery only to the extent set forth in the order dated January 23, 2001, and (3), by permission, from an order of the same court dated July 31, 2001, which confirmed the report of the special referee, accepted the bill of the special referee, and apportioned the payment of the special referee’s bill.

Ordered that the orders are affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiffs maintain that the Supreme Court erred in appointing a private attorney as a special referee in contravention of CPLR 3104 (b). In light of the fact that the plaintiffs failed to raise this issue until after the special referee’s report was written and further discovery had concluded, the plaintiffs have waived their right to contest , the appointment of the special referee (see Dime Sav. Bank of N.Y. v Glavey, 214 AD2d 419 [1995], lv denied 87 NY2d 802 [1995], cert denied 517 US 1221 [1996]; Flotteron v Steinberg, 106 AD2d 427 [1984]; Fisher v Fisher, 223 App Div 19, 21 [1928], affd 250 NY 313 [1929]).

The plaintiffs’ remaining contentions are without merit. Florio, J.P., S. Miller, Friedmann and Luciano, JJ., concur.