Simon v. Massapequa General Hospital

167 A.D.2d 533, 562 N.Y.S.2d 948, 1990 N.Y. App. Div. LEXIS 14262

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1990
• Status: Published

Opinion

In an action to recover damages for medical malpractice and wrongful death, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Nassau County (McCabe, J.), dated May 19, 1989, which denied his motion to compel the third-party defendant to answer enumerated questions posed to him at an examination before trial.

Ordered that the appeal is dismissed, with costs.

"An order denying a motion to compel a witness to answer questions propounded at an examination before trial is akin to a ruling made in the course of the examination itself and as such is not appealable as of right (see, Sainz v New York City Health & Hosps. Corp., 106 AD2d 500; Roberts v Modica, 102 AD2d 886; Aronofsky v Marine Park Chiropractic Center, 81 )” (Ewell v Moore, 133 AD2d 67). Nor are we inclined to grant leave to parties who have taken it upon themselves to perfect an appeal without having applied to this court for leave to appeal. Thompson, J. P., Brown, Kunzeman and Eiber, JJ., concur.