Brodsky v. Selden Sanitary Corp. ( 1981 )

In an action, inter alia, to declare that the sewer rates charged by defendant Selden Sanitary Corp. for the period January 1,1977 to January 1,1978 were illegally and improperly collected and to enjoin said defendant from collecting said rates, defendant Selden appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated November 28, 1980, as denied its motion to compel plaintiffs Brodsky and Lunden to respond to certain questions propounded at an examination before trial. Appeal dismissed, without costs or disbursements. In effect, defendant Selden’s application “was one ‘seeking rulings on an examination before trial’ (Klein v Schneiderman, 58 AD2d 763). Orders made upon questions propounded at an examination before trial are not appealable as of right” (see Siegal v Arnao, 61 AD2d 812). No application for leave to appeal has been made in the case at bar and we would not have granted leave to appeal had such a request been made. We have, however, examined the merits and have concluded that we would affirm the order insofar as appealed from if the appeal were not being dismissed. Damiani, J. P., Gulotta, O’Connor and Thompson, JJ., concur.