Opinion
May 18, 1978
Appeal from order, Supreme Court, New York County, entered March 30, 1977, unanimously dismissed, without costs and without disbursements, and without prejudice to an application by defendant-appellant to reopen plaintiff-respondent's examination before trial in order to pursue before Special Term, Part II, rulings on objections previously interposed on plaintiff's examination. Appellant has failed to follow the procedure set forth in Tri-State Pipe Lines Corp. v Sinclair Refining Co. ( 26 A.D.2d 285, app dsmd 26 A.D.2d 544). The attempt to circumvent that procedure by appellant's application for penalties under CPLR 3124 does not make the order thereon appealable. (Klein v Schneiderman, 58 A.D.2d 763.)
Concur — Kupferman, J.P., Lupiano, Birns, Evans and Sullivan, JJ.