Opinion
November 26, 1982
In actions to recover damages for personal injuries, plaintiff Robert Violante appeals from an order of the Supreme Court, Kings County (Lodato, J.), dated February 2, 1982, which denied his ex parte application to continue an examination before trial of the defendant David Berkowitz, which had been commenced on January 19, 1982, and to have certain designated people present at said examination before trial. Order reversed, without costs or disbursements, and appellant's application is granted to the extent that it seeks a continuation of the examination before trial of defendant Berkowitz and requests that the following people be present at said deposition: Harry Lipsig, attorney for appellant Violante; Theodore Kerin, attorney on Harry Lipsig's staff; and a stenographer or court reporter, selected by Harry Lipsig, for the purpose of taking and recording the testimony of defendant Berkowitz; Seth Rubinstein, attorney for the conservator for the defendant Berkowitz, shall represent or designate an appropriate individual to represent the defendant Berkowitz and shall be present at the ordered deposition. The deposition shall take place on December 15, 1982 at the correctional facility at which defendant Berkowitz is being held. While an appeal from an ex parte order is not authorized (see Matter of State of New York v Fuller, 31 A.D.2d 71, 73), we deem it appropriate to treat the instant appeal as an application for review, pursuant to CPLR 5704 (subd [a]). The examination before trial of defendant Berkowitz which had been commenced on January 19, 1982, pursuant to court order, was not completed on that day. The attorney for plaintiff Violante had adjourned the taking of Berkowitz' deposition, at the apparent request of Berkowitz. Therefore, Violante should have been permitted to continue his examination before trial of Berkowitz. However, only those persons designated, as stated above, shall be permitted to be present at said deposition. Damiani, J.P., O'Connor, Thompson and Bracken, JJ., concur.