Susanne Aberbach–Marolda, etc., respondent, et al., plaintiff, v. Daniel Cherner, appellant. (2026)

Submitted—November 9, 2021

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated April 30, 2018.  The order, insofar as appealed from, denied those branches of the defendant's motion which were to compel the plaintiff Susanne Aberbach–Marolda to provide authorizations for Internet providers to release certain emails, to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain bank and telephone records, granted that branch of the defendant's motion which was to compel the plaintiff Susanne Aberbach–Marolda to appear for a new deposition only to the extent of directing her to appear for a deposition limited to certain lines of inquiry, and granted that branch of the motion of the plaintiff Susanne Aberbach–Marolda and Doris T. Friedman which was to preclude the defendant from introducing at trial video recordings of the deposition of the plaintiff Susanne Aberbach–Marolda.  Justice Ford has been substituted for former Justice Zayas (see 22 NYCRR 1250.1[b] ).

ORDERED that the appeal is dismissed, without costs or disbursements.

The appeal from the order must be dismissed because the portion of the order which, in effect, seeks rulings on an examination before trial is not appealable as of right (see Cruz v Roman Catholic Church for Most Holy Trinity, 222 A.D.2d 395), and the right of direct appeal from the remaining portions of the order terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1];  Matter of Aho, 39 N.Y.2d at 248;  Aberbach–Marolda v. Cherner, _ AD3d _ [Appellate Division Docket No. 2019–09826;  decided herewith] ).

DILLON, J.P., BARROS, WOOTEN and FORD, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court