Lacerenza v. Rich
| Decision Date | 01 May 1972 |
| Citation | 332 N.Y.S.2d 230,39 A.D.2d 716 |
| Parties | Salvatore LACERENZA et al., Appellants, v. Michael J. RICH, Jr., as Administrator, etc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before HOPKINS, Acting P.J., and SHAPIRO, CHRIST, BRENNAN and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County, dated November 24, 1970, as directed plaintiff Salvatore Lacerenza to answer questions, upon certain subjects, at an examination before trial.
Appeal dismissed, with $10 costs and disbursements.
The order is not appealable (Matthews v. Schusheim, 25 A.D.2d 450, 266 N.Y.S.2d 905; Brimberg v. Frielich, 10 A.D.2d 850, 199 N.Y.S.2d 128; Hall v. Wood, 5 A.D.2d 998, 173 N.Y.S.2d 541).
We have, however, examined the merits and have concluded that we would affirm the order insofar as appealed from if the appeal were not being dismissed.
The examination shall proceed at the place directed in the order under review at a time to be specified in a written notice of not less than 10 days, to be given by defendant, or at such other time and place as may be agreed by the parties.
BENJAMIN, J., dissents and votes to affirm the order insofar as appealed from, with the following memorandum:
In my opinion the order affects a substantial right and therefore is appealable as of right (CPLR 5701, (a), 2, (v)). On the merits, I agree that the order was correct.
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