Antonucci v. Estate of Raguso

—In an action, inter alia, to recover on a promissory note and to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Surrogate’s Court, Westchester County (Emanuelli, S.), dated May 7, 1998, as denied that branch of their motion which was to preclude Frank Raguso from testifying at trial.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendants’ contention, the Surrogate’s Court providently exercised its discretion in denying that branch of their motion which was to preclude the plaintiffs from calling nonparty witness Frank Raguso at trial. The defendants failed to establish that the plaintiffs violated either an outstanding discovery request or a discovery order. Therefore, the determination to afford the defendants the opportunity to examine that witness during a specific time period before the trial date was proper (see, Brown v United Christian Evangelistic Assn., 270 AD2d 378; Kingsley v Kantor, 265 AD2d 529; see generally, Garcia v Kraniotakis, 232 AD2d 369; Skowronski v F & J Meat Packers, 210 AD2d 392). Joy, J. P., S. Miller, Luciano and Smith, JJ., concur. •