Muller v. Sorensen

• Citation: 138 A.D.2d 683,526 N.Y.S.2d 496
• Parties: Charles MULLER, et al., Respondents, v. Emil George SORENSEN, Appellant, et al., Defendants.
• Decision Date: 28 March 1988
• Court: New York Supreme Court Appellate Division

Page 496

526 N.Y.S.2d 496

138 A.D.2d 683

Charles MULLER, et al., Respondents, v. Emil George SORENSEN, Appellant, et al., Defendants.

Supreme Court, Appellate Division Second Department.

March 28, 1988.

Fogarty & Fogarty, P.C., Mineola (Scott Fairgrieve, of counsel), for appellant.

Davidow, Davidow, Wismann & Levy, Patchogue (Arza Rayches Feldman, of counsel), for respondents.

Before THOMPSON, J.P., and BROWN, WEINSTEIN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant Emil George Sorensen appeals from an order of the Supreme Court, Suffolk County (Luciano, J.), dated June 19, 1987, which granted the plaintiffs' motion to compel disclosure by directing him to comply with Items Nos. 1, 2, 6, 12, 13 and 14 of the plaintiffs' notice for discovery and inspection dated April 16, 1986, and directing him to appear for a further examination before trial.

ORDERED that the appeal from so much of the order as granted that branch of the plaintiffs' motion which was for a further examination before trial of the appellant is dismissed; and it is further,

ORDERED that the order is otherwise modified, by deleting the provision thereof which directed the appellant to produce his 1984 and 1985 tax returns pursuant to Item No. 1 of the plaintiffs' notice for discovery and inspection; as so modified, the order is affirmed insofar as reviewed; and it is further,

ORDERED that the plaintiffs are awarded one bill of costs, and the appellant's time to comply with the plaintiffs' notice for discovery and inspection, as modified by this court, is extended until 30 days after service upon him of a copy of this decision and order, with notice of entry.

No appeal lies as of right from an order determining an application made to review objections made at an examination before trial ( see, e.g., Ielovich v. Taylor Mach. Works, 128 A.D.2d 676, 153 N.Y.S.2d 175; Stoller v. Moo Young Jun, 118 A.D.2d 637, 499 N.Y.S.2d 790). The appellant failed to seek permission of this court for leave prior to perfecting his appeal. We will not now grant him leave to appeal from the granting of that branch of the plaintiffs' motion which was for a further examination before trial of him (see, Sainz v. New York Health & Hosps. Corp., 106 A.D.2d 500, 483 N.Y.S.2d 37).

The Supreme Court, Suffolk County, and the parties to this appeal correctly recognize that the failure of a party to challenge the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122 forecloses inquiry into the propriety of the information sought, except as to material which is privileged under CPLR 3101 or as to requests which are palpably improper (see, e.g., Handy v. Geften Realty, 129 A.D.2d 556, 514 N.Y.S.2d 51; Sprague v. International Business Machs. Corp., 114 A.D.2d 1025, 495 N.Y.S.2d 462). It is undisputed that the appellant made no timely motion for a...