BORK v. CITY OF NEW YORK (1997)

Supreme Court, Appellate Division, First Department, New York.

William BORK, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Decided: March 27, 1997

Before MURPHY, P.J., and SULLIVAN, MILONAS and TOM, JJ.

Arnold E. DiJoseph, III, New York City, for Plaintiffs-Appellants. Paul Crotty, Corporation Counsel (John Hogrogian, of counsel), New York City, for Defendant-Respondent City of New York. Wilson, Elser, Moskowitz, Edelman & Dicker (Carolyn Karp Schwartz and Richard E. Lerner, of counsel), New York City, for Defendant-Respondent School Construction Authority.

Appeal from order, Supreme Court, New York County, (Phyllis Gangel-Jacob, J.), entered on or about August 6, 1996, which, insofar as appealed from, directed plaintiff, “[i]n the event that [he] decides to produce a vocational expert to testify to his inability or limited ability to be employed”, to produce a copy of his vocational expert's report and to submit to an examination by defendant's vocational expert, unanimously dismissed, without costs, as taken from a nonappealable order.

The subject preliminary conference order is nonappealable since it was not made on notice (see, Everitt v. Health Maintenance Center, 86 A.D.2d 224, 449 N.Y.S.2d 713). Were we to consider the merits, we would affirm, finding no improvident exercise of discretion by the motion court.

MEMORANDUM DECISION.

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