KING v. SALVATION ARMY (1997)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated May 28, 1996, as denied those branches of their cross motion which were to compel the plaintiff to answer certain questions propounded at an examination before trial and to respond to a notice for discovery and inspection dated February 29, 1996.

ORDERED that the appeal from so much of the order as denied the defendants' motion to compel the plaintiff to answer certain questions propounded at an examination before trial is dismissed, without costs or disbursements, and it is further,

ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.

 The portion of the order which denied the defendants' motion to compel the plaintiff to answer certain questions propounded at an examination before trial, in effect, determines an application to review objections raised at an examination before trial.   Such an order is not appealable as of right, and we decline to grant leave to appeal (see, Cruz v. Roman Catholic Church for Most Holy Trinity, 222 A.D.2d 395, 635 N.Y.S.2d 44;  Matter of Heller, 216 A.D.2d 393, 628 N.Y.S.2d 518).

 The Supreme Court did not err in denying that branch of the defendants' motion which was to compel the plaintiff to respond to a notice for discovery and inspection dated February 29, 1996.   The defendants failed to meet their burden of establishing that the medical records that they sought concerned physical or mental conditions which were “in controversy” in this action (see, CPLR 3121[a];  Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857;  Manley v. New York City Hous. Auth., 190 A.D.2d 600, 593 N.Y.S.2d 808).

MEMORANDUM BY THE COURT.