Opinion
October 1, 1998
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
The order directing plaintiffs to file the note of issue unfairly deprived defendant of its right to discovery ( Lipson v. Dime Sav. Bank, 203 A.D.2d 161, 162-163), especially where the record shows that if anyone, it was plaintiffs, not defendant, who engaged in dilatory conduct, and it was plaintiffs who had the burden to prosecute the action here ( see, CPLR 3216 [a]). Neither the court's order declining to sign the OSC nor the court's denial of the portion of the OSC seeking reargument, is appealable (CPLR 5701 [a] [2]; Matter of Spedicato v. New York State Div. of Hous. Community Renewal, 241 A.D.2d 343; Kellert v. Mail Boxes, Etc. USA, 248 A.D.2d 127).
Concur — Sullivan, J.P., Ellerin, Williams, Tom and Mazzarelli, JJ.