Sainz v. New York City Health and Hospitals Corp.

• Decision Date: 17 December 1984
• Citation: 483 N.Y.S.2d 37,106 A.D.2d 500
• Parties: Luiz SAINZ, etc., Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 37

483 N.Y.S.2d 37

106 A.D.2d 500

Luiz SAINZ, etc., Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 17, 1984.

Hoberman & Sussman, P.C., Brooklyn (Spencer H. Herman, New York City, of counsel), for appellant.

Bower & Gardner, New York City (Howard R. Cohen, New York City, of counsel), for respondent.

Before THOMPSON, J.P., and O'CONNOR, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a negligence and medical malpractice action, plaintiff appeals from so much of an order of the Supreme Court, Kings County, dated November 22, 1983, as denied that part of plaintiff's motion as sought the production by defendant of Dr. Leonard Benedict for a further examination before trial.

Appeal dismissed, without costs or disbursements.

Plaintiff's request for a further examination before trial in effect was an application " 'seeking rulings on an examination before trial' " (Siegal v. Arnao, 61 A.D.2d 812, 402 N.Y.S.2d 44, quoting from Klein v. Schneiderman, 58 A.D.2d 763, 395 N.Y.S.2d 1022). This court has repeatedly held that an order on an application to review objections raised at an examination before trial is not appealable as of right (see, e.g., Roberts v. Modica, 102 A.D.2d 886, 477 N.Y.S.2d 59; Aronofsky v. Marine Park Chiropractic Center, 81 A.D.2d 570, 437 N.Y.S.2d 422; Hartsdale Agency v. Aetna Cas. & Sur. Co., 69 A.D.2d 832, 415 N.Y.S.2d 627; Siegal v. Arnao, supra). In addition to the fact that "we are disinclined to grant leave to parties who have taken it upon themselves to perfect an appeal without leave to appeal" (Roberts v. Modica, supra ), had an application been made, we would not have granted leave to appeal under the circumstances herein (see Hartsdale Agency v. Aetna Cas. & Sur. Co., supra; Siegal v. Arnao, supra ).