Tommy Hilfiger U.S.A., Inc. v. Insurance Co. of North America

Appeal of defendant PSFS, Inc. from an order, Supreme Court, New York County (Herman Cahn, J.), entered October 11, 1995, which, inter alia, denied its motion to compel the claims adjuster of defendant Insurance Company of North America (INA) to respond to certain questions concerning the subject insurance policy that were asked at her deposition and to have her supervisor produced for a further deposition, dismissed, without costs. It is long established that rulings directed to an examination before trial, whether made upon motion papers or not, are not appealable as of right (Lee v Chemway Corp., 20 AD2d 266). 256 Here, PSFS’s motion seeking, inter alia, to compel responses to certain questions asked at the deposition of INA’s claims adjuster and seeking to have her supervisor produced for a further deposition, was, in effect, an application seeking rulings on an examination before trial (see, Caraballo v New York Hosp., 170 AD2d 190; see also, Sainz v New York City Health & Hosps. Corp., 106 AD2d 500). While, as noted by the dissent, there are occasions where a notice of appeal may be treated as an application for leave to appeal (CPLR 5701 [c]), the instant case does not warrant such treatment. Were we to consider the merits, we would affirm with leave to renew the motion upon properly reformulated questions. Concur—Ellerin, J. P., Wallach, Williams and Andrias, JJ.