Elias v. Prudential Investment Corp., S. A.

409 N.E.2d 996, 50 N.Y.2d 924, 431 N.Y.S.2d 524, 1980 N.Y. LEXIS 2483

Opinion

OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs. The question certified refers to "the order of the Supreme Court, as affirmed by this Court” whereas the order of the Appellate Division affirmed two separate orders of Special Term dated April 4, 1979 and May 7, 1979. Moreover, both Special Term orders denied discretionary remedies (vacatur of notices of deposition of plaintiffs because no showing warranting denial had been made, and the placing of the action on the Trial Calendar without prejudice to plaintiffs’ right to continue discovery). The question certified is not whether the orders constituted an abuse of discretion as a matter of law (see Barasch v Micucci, 49 NY2d 594) nor in view of the basis upon which the orders were made could it be. There is, therefore, no issue which we can review on certified question (Cohen and Karger, Powers of the New York Court of Appeals, pp 375-377).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Appeal dismissed, without costs, in a memorandum.