Scott v. Vassar Bros. Hospital

133 A.D.2d 76, 518 N.Y.S.2d 422, 1987 N.Y. App. Div. LEXIS 49602

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 3, 1987
• Status: Published

Opinion

In a medical malpractice action, the defendant Cornwall Hospital appeals from a decision of the Supreme Court, Dutchess County (Jiudice, J.), dated September 19, 1986, which granted the defendant DeLorenzo’s motion for reargument and, upon reargument, denied Cornwall Hospital’s application for a further examination before trial of DeLorenzo.

Ordered that the appeal is dismissed, with costs.

The notice of appeal states that the appeal is taken from the decision of Justice Jiudice, dated September 19, 1986. The decision is not an appealable paper (CPLR 5512 [a]). Although we have the power, in the interest of justice, to treat the notice of appeal as a premature notice of appeal from an order of the same court, dated March 3, 1987, entered upon the decision (CPLR 5520 [c]; People ex rel. Breedan v Zelker, 41 AD2d 669), we decline to exercise this power because said order is not appealable as of right.

The defendant Cornwall Hospital’s application for a further examination before trial of the defendant Dr. DeLorenzo, was an application " 'seeking rulings on an examination before trial’ ” (Siegal v Arnao, 61 AD2d 812, quoting from Klein v Schneiderman, 58 AD2d 763). This court has repeatedly held that no appeal as of right lies from an order on an application to review objections raised at an examination before trial (Sainz v New York City Health & Hosps. Corp., 106 AD2d 500; Roberts v Modica, 102 AD2d 886; Aronofsky v Marine Park Chiropractic Center, 81 AD2d 570; Hartsdale Agency v Aetna Cas. & Sur. Co., 69 AD2d 832; Siegal v Arnao, supra; Ithier v Solomon, 59 AD2d 935). “In addition to the fact that 'we are disinclined to grant leave to parties who have taken it upon themselves to perfect an appeal without leave to appeal’ (Roberts v Modica, supra), had an application been made, we would not have granted leave to appeal under the circumstances herein” (Sainz v New York City Health & Hosps. Corp., supra; see also, Hartsdale Agency v Aetna Cas. & Sur. Co., supra; cf., Hughson v St. Francis Hosp., 93 AD2d 491; Rockwood Natl. Corp. v Peat, Marwick, Mitchell & Co., 59 AD2d 573). Mollen, P. J., Brown, Weinstein and Rubin, JJ., concur.