Alberi v. Rossi

117 A.D.2d 574, 498 N.Y.S.2d 50, 1986 N.Y. App. Div. LEXIS 52841

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1986
• Status: Published

Opinion

—In an action to recover damages for breach of contract, plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Stolarik, J.), dated October 26, 1984, as, upon his motion for an order directing that the examination before trial of the parties in this case "be held either before the Court or [a judicial hearing officer] designated by the court” (emphasis added) pursuant to CPLR 3104 (a), directed that the examinations be held before the court. Plaintiff also purportedly appeals from oral rulings of the same court, rendered November 30, 1984, during the course of an examination before trial, which allegedly denied his request to use a tape recording device and which sustained objection to certain questions about defendant’s finances.

Appeal from the order dated October 26, 1984, dismissed, without costs or disbursements. Since the plaintiff’s motion papers requested relief in the. alternative, and since one of the requested alternative items of relief was granted, plaintiff is not aggrieved by the order dated October 26, 1984 (CPLR 5511).

Purported appeal from oral rulings rendered November 30, 1984, dismissed, without costs or disbursements. No appeal lies from rulings made during the course of an examination before trial (see, Matter of Beeman, 108 AD2d 1010, 1011). Mollen, P. J., Gibbons, Niehoff, Brown and Eiber, JJ., concur.