Scott v. Vassar Bros. Hosp.
| Decision Date | 03 August 1987 |
| Citation | 518 N.Y.S.2d 422,133 A.D.2d 76 |
| Parties | Morris L. SCOTT, Administrator, etc., et al., Plaintiffs, v. VASSAR BROTHERS HOSPITAL, et al., Defendants, The Cornwall Hospital, Appellant; Michael DeLorenzo, Respondent. |
| Court | New York Supreme Court — Appellate Division |
De Vito, Pilkington & Leggett, P.C., White Plains (Dennis A. Vernoia, of counsel), for appellant.
Meiselman, Farber, Packman & Eberz, P.C., Poughkeepsie (Myra I. Packman, of counsel), for respondent.
Before MOLLEN, P.J., and BROWN, WEINSTEIN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action, the defendant Cornwall Hospital appeals from a decision of the Supreme Court, Dutchess County (Jiudice, J.), dated September 19, 1986, which granted the defendant DeLorenzo's motion for reargument and, upon reargument, denied Cornwall Hospital's application for a further examination before trial of DeLorenzo.
ORDERED that the appeal is dismissed, with costs.
The notice of appeal states that the appeal is taken from the decision of Justice Jiudice, dated September 19, 1986. The decision is not an appealable paper (CPLR 5512[a] ). Although we have the power, in the interest of justice, to treat the notice of appeal as a premature notice of appeal from an order of the same court, dated March 3, 1987, entered upon the decision (CPLR 5520[c]; People ex rel. Breedan v. Zelker, 41 A.D.2d 669, 341 N.Y.S.2d 137), we decline to exercise this power because said order is not appealable as of right.
The defendant Cornwall Hospital's application for a further examination before trial of the defendant Dr. DeLorenzo, 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, 396 N.Y.S.2d 244). This court has repeatedly held that no appeal as of right lies from an order on an application to review objections raised at an examination before trial (Sainz v. New York City Health & Hosps. Corp., 106 A.D.2d 500, 483 N.Y.S.2d 37; 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; Ithier v. Solomon, 59 A.D.2d 935, 399 N.Y.S.2d 450). "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....
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...of an issue made during depositions, trials, or other proceedings, is not appealable (see CPLR 5501 ; Scott v. Vassar Bros. Hosp., 133 A.D.2d 76, 77, 518 N.Y.S.2d 422 ; Lee v. Chemway Corp., 20 A.D.2d 266, 247 N.Y.S.2d 287 ), although rulings that have been objected to and preserved may be ......
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