Opinion
December 13, 1990
Appeal from the Supreme Court, Rockland County (Weiner, J.).
During the discovery phase of this action, defendants Pine Shade Builders, Inc. and Nachman Eagle (hereinafter collectively referred to as defendants) made a motion to hold a nonparty witness in contempt for failure to testify at an examination before trial (hereinafter EBT) in accordance with a subpoena. In response to defendants' motion, the nonparty witness cross-moved to quash the subpoena and plaintiff's counsel submitted an affirmation stating that plaintiff too wished to examine the nonparty witness, but urging that examination of the parties, particularly Eagle, should be completed first. Supreme Court denied defendants' motion and the nonparty witness's cross motion and, inter alia, ordered the witness to submit to an EBT on October 31, 1989. The court then amended its order sua sponte, directing Eagle to appear for an EBT on October 17, 1989. This appeal by defendants ensued.
Defendants' sole contention on appeal is that Supreme Court improperly amended its order to direct an EBT of Eagle in the absence of a cross motion by plaintiff. We agree. While the affidavit submitted by plaintiff's counsel suggests that the EBT of the nonparty witness should await completion of Eagle's EBT, plaintiff served no notice of cross motion demanding that an examination of Eagle be scheduled and, indeed, no such relief was even requested in his counsel's affirmation (see, CPLR 2215). Thus, Supreme Court had no basis for directing Eagle to appear for an EBT (see, Nagle v. New York Hotel Trades Council Hotel Assn., 68 A.D.2d 905; see also, Anderson Props. v. Sawhill Tubular Div., 149 A.D.2d 950; Guggenheim v. Guggenheim, 109 A.D.2d 1012, 1012-1013).
Order modified, on the law, without costs, by deleting so much thereof as directed defendant Nachman Eagle to appear at an examination before trial, and, as so modified, affirmed. Weiss, J.P., Mikoll, Levine, Mercure and Harvey, JJ., concur.