| Youngquist v Youngquist |
| 2007 NY Slip Op 08216 [44 AD3d 1034] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Marilyn C. Onderdonk Youngquist, Plaintiff, v Mark N.Youngquist, Defendant. In the Matter of Charles David Butler II, Respondent, v Marilyn C.Youngquist, Appellant. |
—[*1] James P. Joseph & Associates, P.C., Garden City, N.Y. (David W. Teeter of counsel), forrespondent.
In an action for a divorce and ancillary relief, and a related proceeding to establish paternitypursuant to Family Court Act article 5, the mother appeals, as limited by her brief, from statedportions of an order of the Supreme Court, Suffolk County (Bivona, J.), dated August 30, 2006,which, inter alia, denied her motion to compel a deposition of the putative father, to stay ahearing on the issue of equitable estoppel pending that deposition, to stay "all DNA testing in thisaction," and to stay the examination of existing DNA test results and, in effect, directed a hearingto aid in the disposition of that branch of the putative father's cross motion which was for anaward of sanctions pursuant to 22 NYCRR 130-1.1.
Ordered that the appeal from so much of the order as, in effect, directed a hearing to aid inthe disposition of that branch of the putative father's cross motion which was for an award ofsanctions pursuant to 22 NYCRR 130-1.1 is dismissed; and it is further,
Ordered that the appeal from so much of the order as denied those branches of the mother'smotion which were to stay a hearing on the issue of equitable estoppel pending a deposition ofthe putative father and to stay "all DNA testing in this action" is dismissed, as academic; and it isfurther,[*2]
Ordered that the order is affirmed insofar as reviewed;and it is further,
Ordered that one bill of costs is awarded to the respondent.
The Supreme Court has broad discretion to supervise discovery to "prevent unreasonableannoyance, expense, embarrassment, disadvantage, or other prejudice" (CPLR 3103 [a]; seeByck v Byck, 294 AD2d 456 [2002]; Eber Bros. Wine & Liq. Corp. v Ribowsky, 266AD2d 499 [1999]; Richards v Pathmark Food Store, 112 AD2d 360 [1985]). In this case,the Supreme Court providently exercised its discretion in denying that branch of the mother'sbelated motion which sought to compel a deposition of the putative father on matters that wereirrelevant to the upcoming hearing on the limited issue of equitable estoppel.
That portion of the order appealed from which, in effect, directed a hearing to aid in thedisposition of that branch of the putative father's cross motion which was for an award ofsanctions pursuant to 22 NYCRR 130-1.1 is not appealable as of right, as it did not dispose ofthat branch of the cross motion and did not affect a substantial right (see CPLR 5701 [a][2] [v]; Espie v Murphy, 35 AD3d 346 [2006]; Kornblum v Kornblum, 34 AD3d749 [2006]; Matter of Steinberg, 289 AD2d 337 [2001]), and leave to appeal has notbeen granted.
During the pendency of this appeal, the hearing on the issue of equitable estoppel wascompleted. Therefore, the appeal from so much of the order as denied that branch of the mother'smotion which was to stay the hearing has been rendered academic (see Warren v Mikle,40 AD3d 974 [2007]). Moreover, the record reveals that all DNA testing relevant to thepaternity proceeding has already been conducted. Thus, the appeal from so much of the order asdenied that branch of the mother's motion which was to stay "all DNA testing in this action" isacademic (cf. Zafran v Zafran, 28 AD3d 752 [2006]).
The mother's remaining contentions are unpreserved for appellate review or without merit.Prudenti, P.J., Fisher, Dillon and Dickerson, JJ., concur.