EFDEY ELECTRICAL CONTRACTORS, INC. v. MELITA, 151 A.D.2d 640 [2d Dept 1989]

___ N.Y.S.2d ___

EFDEY ELECTRICAL CONTRACTORS, INC., Respondent, v. ANTHONY MELITA, Individually and Doing Business as MELITA ELECTRIC, et al., Defendants and Third-Party Plaintiffs-Appellants.
CONSOLIDATED LAUNDRIES, INC., et al., Third-Party Defendants-Respondents. Appellate Division of the Supreme Court of the State of New York Second Department June 19, 1989

Appeal from the Supreme Court, Queens County (Hentel, J.). Page 641

Ordered that the appeal is dismissed, with costs to the third-party defendants-respondents, and the third-party plaintiff Anthony Melita's time to submit to an examination before trial is extended until 30 days after service upon him of a copy of this decision and order, with notice of entry.

Anthony Melita appeared as a witness at an examination before trial in his individual capacity, and as a representative of the two other defendants third-party plaintiffs, a partnership and a corporation bearing his name. When he refused to be questioned in

a single examination before trial, a ruling was obtained directing him to do so. The defendants third-party plaintiffs then unsuccessfully sought a protective order setting aside that ruling. This appeal ensued.

It is clear that an order made upon an application to review objections raised at an examination before trial is not appealable as of right (see, Scott v. Vassar Bros. Hosp.,

133 A.D.2d 76; Ewell v. Moore, 133 A.D.2d 67; Sainz v. New York City Health & Hosps. Corp., 106 A.D.2d 500; Roberts v. Modica, 102 A.D.2d 886; Aronofsky v. Marine Park Chiropractic Center, 81 A.D.2d 570; Rockwood Natl. Corp. v. Peat, Marwick, Mitchell & Co., 59 A.D.2d 573). Had an application for leave to appeal been made in this case, under the circumstances, we would not have granted it (Scott v. Vassar Bros. Hosp., supra; Sainz v. New York City Health & Hosps. Corp., supra). Mangano, J.P., Brown, Lawrence, Kooper and Harwood, JJ., concur.