Hilicki v. Hotel Nikko of New York, Inc.

Ord [397] er, Supreme Court, New York County (Louise Gruner Gans, J.), entered December 14, 1999, which, inter alia, denied defendant-appellant’s motion for the issuance of an open commission to take the depositions without the State of two nonparty witnesses, unanimously affirmed, without costs. The motion for an open commission was properly denied considering that it was made only two days prior to the discovery cut-off date, although appellant became aware of the purported need for the testimony of the out-of-State witnesses no later than two months earlier (see, Red Apple Supermarkets v Malone & Hyde, 251 AD2d 78). Moreover, the relevance of the testimony sought is not apparent. Concur — Sullivan, P. J., Nardelli, Rubin, Saxe and Friedman, JJ.