WDF INC v. PEGNO CONSTRUCTION CORP TULLY CONSTRUCTION CO INC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered June 7, 2022.  The order, insofar as appealed from, denied those branches of the plaintiff's renewed motion which were to compel the production of certain documents and the defendant Peter Tully and nonparty Thomas Olesczuk for further depositions to answer certain questions.

ORDERED that the appeal from so much of the order as denied that branch of the plaintiff's renewed motion which was to compel the production of the defendant Peter Tully and nonparty Thomas Olesczuk for further depositions to answer certain questions is dismissed;  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The facts of this case are more fully set forth in this Court's decision and order on a related appeal (see WDF, Inc. v A.J. Pegno Construction Corp./Tully Construction Co., Inc., ––– AD3d –––– [Appellate Division Docket No. 2022–03700;  decided herewith] ).  The plaintiff moved, inter alia, to compel the production of certain documents and the defendant Peter Tully and nonparty Thomas Olesczuk for further depositions to answer certain questions (hereinafter the first motion to compel).  In an order dated March 8, 2021, the Supreme Court, among other things, denied the first motion to compel on the ground that the plaintiff failed to submit sufficient proof of its good-faith efforts to resolve the discovery dispute.

Thereafter, the plaintiff moved, inter alia, to compel the production of the same documents and Tully and Olesczuk for further depositions to answer certain questions (hereinafter the second motion to compel).  In an order dated January 7, 2022, the Supreme Court denied those branches of the second motion to compel on the ground that the plaintiff failed to comply with 22 NYCRR 202.8–b(c), with leave to renew upon submission of proper papers in compliance with the Uniform Rules.  Thereafter, the plaintiff made a renewed motion, among other things, to compel the production of certain documents and Tully and Olesczuk for further depositions to answer certain questions.  In an order entered June 7, 2022, the court, inter alia, denied those branches of the renewed motion.  The court determined, among other things, that the discovery demands at issue had already been denied in the order dated March 8, 2021.  The plaintiff appeals from the order entered June 7, 2022.

“An order denying a motion to compel a witness to answer questions propounded at an examination before trial is akin to a ruling made in the course of the examination itself and is not appealable as of right, even where it was made upon a full record and on the plaintiffs' motion to compel responses” (Martino v. Jae Ho Lee, 218 AD3d 766, 768).  The portion of the order appealed from denying that branch of the plaintiff's renewed motion which was to compel the production of Tully and Olesczuk for further depositions to answer certain questions is not appealable as of right, and the plaintiff failed to seek leave to appeal from that portion of the order.  Under these circumstances, we decline to grant leave to appeal on the Court's own motion (see Donato v. Nutovits, 149 AD3d 1037, 1038;  Taylor v. New York City Hous. Auth., 83 AD3d 929, 929;  see also Martino v. Jae Ho Lee, 218 AD3d at 768).  Accordingly, we dismiss the appeal from that portion of the order entered June 7, 2022.

The Supreme Court properly denied that branch of the plaintiff's renewed motion which was to compel the production of certain documents.  As the court determined, the plaintiff's renewed motion sought to compel the production of the same documents that were the subject of the first motion to compel, which had been denied in the order dated March 8, 2021.  The plaintiff's proper remedy was to appeal from the order dated March 8, 2021, or to move for leave to renew or reargue the first motion to compel, not to make a second motion seeking the same relief.

The parties' remaining contentions are without merit.

CHAMBERS, J.P., DOWLING, WAN and GOLDBERG VELAZQUEZ, JJ., concur.