Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered May 31, 2006. The order, insofar as appealed from, denied defendant's cross motion to dismiss the complaint and denied a "request" for leave to conduct an examination before trial.

Appeal from so much of the order as denied defendant's "request" for an examination before trial dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action to recover for breach of a credit card agreement, defendant cross-moved to dismiss the complaint on the ground that plaintiff did not comply with an order of the court directing discovery. The order directed that an examination before trial be conducted on December 8, 2005. Defendant's counsel sought to adjourn the examination before trial, but she failed to obtain a written stipulation signed by the parties and "so ordered" by the court as required by the discovery order. Inasmuch as defendant failed to establish that plaintiff did not comply with the discovery order, the court below properly denied defendant's cross motion to dismiss the complaint. Moreover, even if defendant had established that plaintiff did not comply with the discovery order, the drastic sanction of dismissal would be unwarranted in the absence of a showing that the failure to comply was willful and contumacious (see CPLR 3126; Irizarry v Ashar Realty Corp., 14 AD3d 323 [2005]).

The appeal from the portion of the order that denied defendant's "request" to conduct an examination before trial is dismissed because no appeal as of right lies from said application, which was not made on written notice (CCA 1702). It appears that said application may have been made orally before the court, and there are no papers contained in the record with respect to the "request" which can be reviewed on appeal.
Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 14, 2008