Opinion
2007-776 Q C.
Decided July 10, 2008.
Appeal from three orders of the Civil Court of the City of New York, Queens County, dated, respectively, January 17, 2007 (Timothy J. Dufficy, J.), March 19, 2007 (Timothy J. Dufficy, J.), and April 2, 2007 (Bernice Daun Siegal, J.). The order dated January 17, 2007, insofar as appealed from, denied plaintiff's motion for a protective order. The order dated March 19, 2007 denied plaintiff's motion to strike defendants' answer and/or preclude defendants from offering evidence, and provided that "plaintiff's request for a videotaped deposition is denied." The order dated April 2, 2007, insofar as appealed from, denied plaintiff's motion to strike defendants' answer and/or preclude defendants from offering evidence.
Appeal from so much of the March 19, 2007 order as provided that the court denied "plaintiff's request for a videotaped deposition" dismissed.
Order dated March 19, 2007, insofar as reviewed, and orders dated January 17, 2007 and April 2, 2007, insofar as appealed from, affirmed without costs.
PRESENT: RIOS, J.P., PESCE and GOLIA, JJ.
An appeal as of right does not lie from the part of the March 19, 2007 order which provided that "plaintiff's request for a videotaped deposition is denied" since it did not determine a demand for relief made by motion on notice to defendants ( see CCA 1702 [a] [2]; Cucaj v Paramount Fee, L.P. , 17 Misc 3d 130[A], 2007 NY Slip Op 51976[U] [App Term, 2d 11th Jud Dists 2007]; Green v Crosby , 11 Misc 3d 132 [A], 2006 NY Slip Op 50353[U] [App Term, 2d 11th Jud Dists 2006]). In his written motion, plaintiff sought only to strike defendants' answer; he did not seek to compel defendants' deposition or raise the question of videotaping in any way; therefore, defendants did not address that issue in their opposition. As there is no record below concerning the videotaping issue, we decline to exercise our discretion to treat the notice of appeal as an application for leave to appeal from the denial of that request.
Plaintiff's other arguments on appeal are unavailing. "The supervision of disclosure and the setting of reasonable terms and conditions therefor are matters resting within the court's discretion and, absent an improvident exercise of that discretion, its determinations will not be disturbed on appeal" ( Gillen v Utica First Ins. Co. , 41 AD3d 647, 647 ). In this case, the court below did not improvidently exercise its discretion in denying plaintiff's requests for a protective order pursuant to CPLR 3103 (a), and to strike defendants' answer and/or preclude defendants from offering evidence pursuant to CPLR 3126 (3) ( see e.g. Gillen v Utica First Ins. Co. , 41 AD3d 647 , supra; Cruzatti v St. Mary's Hosp., 193 AD2d 579).
Plaintiff's remaining contentions are without merit.
Rios, J.P., Pesce and Golia, JJ., concur.