Simon v. Massapequa General Hospital — 167 A.D.2d 533

Majority

p. 533

Joseph L. Simon, Individually and as Administrator of the Estate of Kathleen Simon, Deceased, et al., Plaintiffs, v Massapequa General Hospital et al., Defendants, and David L. Dreizen, D.O., Defendant and Third-Party Plaintiff-Appellant. Ross Friedman, Third-Party Defendant-Respondent.

In an action to recover damages for medical malpractice and wrongful death, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Nassau County (McCabe, J.), dated May 19, 1989, which denied his motion to compel the third-party defendant to answer enumerated questions posed to him at an examination before trial.

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 as such is not appealable as of right (see, Sainz v New York City Health & Hosps. Corp., 106 AD2d 500 ; Roberts v Modica, 102 AD2d 886 ; Aronofsky v Marine Park Chiropractic Center, 81

p. 534

AD2d 570 )” (Ewell v Moore, 133 AD2d 67 ). Nor are we inclined to grant leave to parties who have taken it upon themselves to perfect an appeal without having applied to this court for leave to appeal. Thompson, J. P., Brown, Kunzeman and Eiber, JJ., concur.