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

Joseph MERENDA, et al., Respondents, v. Kenneth M. LISI, et al., Appellants.

Decided: November 24, 1997

Before BRACKEN, J.P., and PIZZUTO, ALTMAN and KRAUSMAN, JJ. Fiedelman & McGaw, Jericho (Karen G. Leslie, of counsel), for appellants. Philip F. Alba, P.C., West Islip (Joseph C. Leshen, of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Lally, J.), dated May 1, 1996, which denied their motion for a protective order and to quash a subpoena served upon a nonparty witness.

ORDERED that the appeal is dismissed as academic, with costs.

The defendants' motion sought, in effect, to prevent the taking of a second deposition of a nonparty witness.   Inasmuch as a stay was not obtained, and the second deposition has since taken place, the appeal is dismissed as academic (see, People ex rel. Smalls v. Tekben, 193 A.D.2d 828, 598 N.Y.S.2d 998;  Matter of Niagara Mohawk Power Corp. v. New York State Department of Envtl. Conservation, 169 A.D.2d 943, 564 N.Y.S.2d 839).


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