Gargano v. Langman

186 A.D.3d 1331

128 N.Y.S.3d 901 (Mem)

Phyllis GARGANO, appellant,

v.Yaron LANGMAN, et al., respondents, et al., defendants.

2019–04221

Index No. 30988/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 31, 2020

September 16, 2020

Meagher & Meagher, P.C., White Plains, N.Y. (Kacey M. Martin of counsel), for appellant.

Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Lia Elizabeth Fierro of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, RUTH C. BALKIN, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated March 20, 2019. The order denied the plaintiff's motion to compel the defendants Yaron Langman and Vipul Shah to be produced for further examinations before trial to answer certain questions.

ORDERED that the appeal is dismissed, with costs.

"An order denying a motion to compel a witness to answer questions propounded at an examination before trial is akin to a ruling made in the course of the examination itself and is not appealable as of right, even where it was made upon a full record and on the plaintiff's motion to compel responses" ( Donato v. Nutovits, 149 A.D.3d 1037, 1038, 52 N.Y.S.3d 488 ; see Taylor v. New York City Hous. Auth., 83 A.D.3d 929, 920 N.Y.S.2d 706 ). Here, the plaintiff did not seek leave to appeal. Under these circumstances, we decline to grant leave to appeal on the Court's own motion (see Donato v. Nutovits, 149 A.D.3d at 1038, 52 N.Y.S.3d 488 ; Taylor v. New York City Hous. Auth....