Aronson v. City of Mount Vernon

s. In anaction, inter alia, to recover damages for libel, slander, breach of contract, etc., arising out of the discharge of plaintiff from her employment, defendants appeal from an order of the Supreme Court, Westchester County (Isseks, J.), dated January 23, 1985, which ordered four of the individual defendants to appear for an examination before trial. Appeal by defendant Wiersma dismissed. Defendant Wiersma was not aggrieved by the order appealed from since it did not apply to him (CPLR 5511; see, Kipbea Baking Co. v Strauss, 10 AD2d 987). On the appeal by the remaining defendants, order affirmed. Respondent is awarded one bill of costs. Appellants have failed to sustain their burden of showing that they are immune from disclosure (see, Koump v Smith, 25 NY2d 287). The mere fact that they are members of a legislative body does not exempt them from a requirement to appear at an examination before trial (cf. Supan v Michelfeld, 97 AD2d 755; Consolidated Petroleum Term, v Incorporated Vil. of Port Jefferson, 75 AD2d 611). The issues raised by appellants concerning their entitlement to dismissal of the complaint were not presented to Special Term in a manner sufficient to obtain a ruling thereon and [614] therefore will not be considered by this court on appeal (see, Randall-Smith, Inc. v 43rd St. Estates Corp., 23 AD2d 835, revd on other grounds 17 NY2d 99). Our decision is without prejudice to their right to assert these contentions before Special Term in an appropriate motion. Thompson, J. P., Brown, Weinstein and Eiber, JJ., concur.