Spann v. Ellis

Appellate Division of the Supreme Court of New York

Spann v. Ellis

131 A.D.2d 830, 517 N.Y.S.2d 91, 1987 N.Y. App. Div. LEXIS 48274

Appellate Division of the Supreme Court of the State of New York·Decided June 29, 1987·Published·Cited by 2 cases

Opinion

In a negligence action to recover damages for personal injuries, the defendant Philippe N. Ellis appeals from an order of the Supreme Court, Richmond County (Amann, J.), dated January 7, 1986, which denied his motion pursuant to CPLR 3103 for a protective order concerning scheduling of his examination before trial and to prohibit the imposition of sanctions against him.

Ordered that the order is affirmed, with costs.

The appellant followed an improper procedural course for seeking review of an order dated December 17, 1985. This order conditionally granted the plaintiff’s motion under CPLR 3126 to preclude the appellant from testifying at the trial unless he appeared for an examination before trial within 60 days of service of the order. The order was served upon all parties on December 19, 1985. No appeal was taken from that order nor did the appellant seek leave to reargue. Rather, the appellant sought a protective order against enforcement of the December 17, 1985 order prior to the running of the 60-day period provided therein. No protective order should issue upon [831] this basis. Therefore, we find no abuse of discretion in the denial of the appellant’s motion for such relief. Thompson, J. P., Weinstein, Eiber and Sullivan, JJ., concur.

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In a negligence action to recover damages for personal injuries, the defendant Philippe N. Ellis appeals from an order of the Supreme Court, Richmond County (Amann, J.), dated January 7, 1986, which denied his motion pursuant to CPLR 3103 for a protective order concerning scheduling of his examination before trial and to prohibit the imposition of sanctions against him.

Ordered that the order is affirmed, with costs.

The appellant followed an improper procedural course for seeking review of an order dated December 17, 1985. This order conditionally granted the plaintiff’s motion under CPLR 3126 to preclude the appellant from testifying at the trial unless he appeared for an examination before trial within 60 days of service of the order. The order was served upon all parties on December 19, 1985. No appeal was taken from that order nor did the appellant seek leave to reargue. Rather, the appellant sought a protective order against enforcement of the December 17, 1985 order prior to the running of the 60-day period provided therein. No protective order should issue upon [831] this basis. Therefore, we find no abuse of discretion in the denial of the appellant’s motion for such relief. Thompson, J. P., Weinstein, Eiber and Sullivan, JJ., concur.

Spann v. Ellis, 131 A.D.2d 830, 517 N.Y.S.2d 91, 1987 N.Y. App. Div. LEXIS 48274 (N.Y. Ct. App. 1987).

Pincite

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Opinion

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