Lebovits v. PSFB Associates

Levine, J. Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Weiner, J.), entered September 28, 1989 in Rockland County, which, inter alia, directed defendant Nachman Eagle to appear for an examination before trial. During the discovery phase of this action, defendants Pine Shade Builders, Inc. and Nachman Eagle (hereinafter collectively referred to as defendants) made a motion to hold a nonparty witness in contempt for failure to testify at an examination before trial (hereinafter EBT) in accordance with a subpoena. In response to defendants’ motion, the nonparty witness cross-moved to quash the subpoena and plaintiffs counsel submitted an affirmation stating that plaintiff too wished to examine the nonparty witness, but urging that examination of the parties, particularly Eagle, should be completed first. Supreme Court denied defendants’ motion and the nonparty witness’s cross motion and, inter alia, ordered the witness to submit to an EBT on October 31, 1989. The court then amended its order sua sponte, directing Eagle to appear for an EBT on October 17, 1989. This appeal by defendants ensued. Defendants’ sole contention on appeal is that Supreme Court improperly amended its order to direct an EBT of Eagle in the absence of a cross motion by plaintiff. We agree. While the affidavit submitted by plaintiffs counsel suggests that the EBT of the nonparty witness should await completion of Eagle’s EBT, plaintiff served no notice of cross motion demanding that an examination of Eagle be scheduled and, indeed, no such relief was even requested in his counsel’s affirmation (see, CPLR 2215). Thus, Supreme Court had no basis for directing Eagle to appear for an EBT (see, Nagle v New York Hotel Trades Council & Hotel Assn., 68 AD2d 905; [786] see also, Anderson Props. v Sawhill Tubular Div., 149 AD2d 950; Guggenheim v Guggenheim, 109 AD2d 1012, 1012-1013). Order modified, on the law, without costs, by deleting so much thereof as directed defendant Nachman Eagle to appear at an examination before trial, and, as so modified, affirmed. Weiss, J. P., Mikoll, Levine, Mercure and Harvey, JJ., concur.