Opinion
December 1, 1994
Appeal from the Supreme Court, New York County (Jane S. Solomon, J.).
The appeal is untimely (CPLR 5513 [a]) because the notice of appeal was filed approximately nine months after service of the order with notice of entry. Were we to consider the merits, we would affirm. While a party may not be compelled to produce a witness not within its control, it is under a duty to so inform the court in order to avoid sanction (see, Schrager v Macy Co., 109 A.D.2d 671). In this case, there was no evidence that the witness in question was not employed by the City either at the time plaintiff initially served her notice of deposition, or at the time defendants failed to produce the witness for deposition on or about September 17, 1991, or on the date of the Preliminary Conference order, November 2, 1992. Under the circumstances, therefore, the limited sanction imposed by the motion court pursuant to CPLR 3126 (2) was not an abuse of discretion.
Concur — Ellerin, J.P., Wallach, Asch, Nardelli and Tom, JJ.