Opinion
October 17, 1988
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the appeal from the order entered November 14, 1986 is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
The plaintiff's appeal from the order entered November 14, 1986, which denied his motion for a protective order with respect to an examination before trial, is dismissed, as no appeal as of right lies from an order determining an application to review rulings made at an examination before trial (see, Crow-Crimmins-Wolff Munier v County of Westchester, 126 A.D.2d 696; Rockwood Natl. Corp. v Peat, Marwick, Mitchell Co., 59 A.D.2d 573), and the plaintiff failed to seek leave to appeal from this court. The right to appeal from the intermediate order entered April 13, 1987 terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The plaintiff's motion for a protective order was properly denied. CPLR 3101 (a) has been liberally construed to permit a court to require disclosure of any facts bearing on the controversy which will assist in the preparation for trial. "The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406; see also, LoGatto v LoGatto, 130 A.D.2d 556). Since the plaintiff alleged that he was discharged from his job because he was erroneously perceived as a drug user, the deposition questions posed by the defendant concerning his possible use or possession of drugs prior to his discharge were necessary for preparation of its defenses. Although the plaintiff had the right to invoke his Fifth Amendment privilege against self-incrimination during the taking of the deposition, he was not entitled to continue to maintain this action if the assertion of the privilege prevented the defendant from properly defending the lawsuit (see, e.g., Laverne v Incorporated Vil. of Laurel Hollow, 18 N.Y.2d 635; Levine v Bornstein, 13 Misc.2d 161, affd 7 A.D.2d 995, affd 6 N.Y.2d 892; cf., Steinbrecher v Wapnick, 24 N.Y.2d 354). Upon the plaintiff's continued refusal to answer the deposition questions, even after this court denied his motion for a stay of an order directing the examination to proceed, the Supreme Court properly granted the defendant's motion to dismiss the complaint pursuant to CPLR 3126 (3) (see, e.g., Laverne v Incorporated Vil. of Laurel Hollow, supra; Levine v Bornstein, supra; cf., Zletz v Wetanson, 67 N.Y.2d 711).
In view of our determination, we find it unnecessary to reach the issue of whether the plaintiff's complaint states a cause of action under Executive Law § 296. Mollen, P.J., Brown, Rubin and Kooper, JJ., concur.