MATTOCKS v. Modern Materials Handling Equipment Corporation, respondent.

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

George MATTOCKS, appellant, v. WHITE MOTOR CORPORATION, et al., defendants, Modern Materials Handling Equipment Corporation, respondent.

Decided: February 22, 1999

GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, GABRIEL M. KRAUSMAN and LEO F. McGINITY, JJ. William T. Stevens, East Norwich, N.Y., for appellant. Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick, N.Y. (Randy Sue Marber of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) stated portions of an order of the Supreme Court, Nassau County (Feuerstein, J.), dated January 9, 1997, which, inter alia, denied that branch of his motion which was to direct the defendant Modern Materials Handling Equipment Corporation to appear for a continued examination before trial, and (2) an order of the same court, dated June 10, 1997, which denied his motion for reargument and for a further extension of time to complete discovery, certified the action ready for trial, and directed him to file a note of issue on or before July 11, 1997, and (3) a judgment of the same court, dated January 5, 1998, which, upon the plaintiff's failure to comply with the order dated June 10, 1997, dismissed the complaint.

ORDERED that the appeals from the orders are dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a] [1] ).

 The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court (see, Matter of U.S. Pioneer Elec. Corp. [Nikko Elec. Corp. of Am.], 47 N.Y.2d 914, 916, 419 N.Y.S.2d 484, 393 N.E.2d 478) and, absent an improvident exercise of that discretion, its determination will not be disturbed (see, Kaplan v. Herbstein, 175 A.D.2d 200, 572 N.Y.S.2d 78).   This action was initially commenced in 1981.   On June 7, 1995, after the plaintiff's lengthy delay in pursuing the action, the court issued its preliminary conference order setting October 7, 1995, as the date for the completion of discovery.   Thereafter, the court issued three further orders dated January 11, 1996, March 27, 1996, and May 15, 1996, extending the plaintiff's time to complete discovery.   The court denied the plaintiff's subsequent motion for an additional extension of time to conduct discovery and ordered the matter as certified ready for trial.   By judgment dated January 5, 1998, the court dismissed the complaint upon the plaintiff's failure to comply with its June 10, 1997, directive to file a note of issue on or before July 11, 1997.

Under the circumstances, the court properly denied those branches of the plaintiff's motion which were to direct the defendant Modern Materials Handling Equipment Corporation to appear for a continued examination before trial and for a further extension of time to complete discovery.   In addition, the action was properly certified ready for trial by the court in its order dated June 10, 1997 (cf., Kaplan v. Herbstein, supra, at 200-201, 572 N.Y.S.2d 78).

In view of the plaintiff's concession that the appeal from the judgment raises no new issues, we affirm the dismissal of the complaint.

The parties' remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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