Opinion
May 28, 1974
In a negligence action to recover damages for personal injuries, defendant Nassau Car Company, Inc., appeals from an order of the Supreme Court, Nassau County, dated October 12, 1973, which denied its motion to amend a ruling made by the Special Term, Part II, of said court on June 11, 1973 at the conclusion of the examination before trial of defendants, which ruling required appellant to append two papers to the transcript of its employee's deposition. Order reversed, in the exercise of this court's discretion, without costs, motion granted and appellant is relieved of the requirement to append said papers to its employee's deposition ( Cohen v. Heine Co., 39 A.D.2d 563). We note that although (1) rulings made in the course of an examination before trial are not appealable ( Hall v. Wood, 5 A.D.2d 998) and (2) attorneys may reserve the right to object at the trial to evidence adduced at an examination before trial, nevertheless, the order under review is appealable because its provisions indicated the possible entry of an order precluding a material witness' testimony at the trial. The order is formally entered and affects a substantial right. It is appealable (CPLR 5701, subd. [a], par. 2, cl. [v]). Gulotta, P.J. Martuscello, Latham, Shapiro and Cohalan, JJ., concur.