DECISION ORDER
ORDERED that the order dated October 29, 2001, is modified by (1) deleting the provision thereof denying that branch of the defendants' motion which was to compel disclosure pursuant to CPLR 3101(i), prior to any party appearing for depositions, of certain audiotapes recorded by the plaintiff and substituting therefor a provision granting that branch of the motion, and (2) deleting the provision thereof denying that branch of the defendants' motion which was to confirm that the action has been dismissed insofar as asserted against the defendants Daniel M. Crown and Robert Beacher, as individuals, and substituting therefor a provision granting that branch of the motion; as so modified, the order dated October 29, 2001, is affirmed, without costs or disbursements; and it is further,
ORDERED that the appeal and the cross appeal from so much of the order dated February 6, 2002, as denied that branch of the motion which was for leave to reargue, and the cross motion for leave to reargue, are dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the appeal from so much of the order dated February 6, 2002, as denied that branch of the defendants' motion which was to direct the plaintiff to provide them with a catalogue of certain audiotapes, is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order dated February 6, 2002, is affirmed insofar as reviewed, without costs or disbursements.
We agree with the defendants that the plaintiff must turn over any audiotapes in its possession prior to deposing the defendants ( see Falk v. Inzinna, 299 A.D.2d 120). Furthermore, the Supreme Court properly denied that branch of the defendants' motion which was to strike the note of issue and the certificate of readiness since the Supreme Court expressly permitted further discovery and no misrepresentations concerning the status of the discovery process were made ( see Torres v. New York City Tr. Auth., 192 A.D.2d 400).
The Supreme Court providently exercised its discretion in denying the plaintiff's cross motion to alter the normal priority of depositions since the defendants obtained priority of deposition ( see Kenna v. New York Mut. Underwriters, 188 A.D.2d 586, 588; Fox v. Fox, 96 A.D.2d 571, 573).
Finally, the branch of the defendants' motion which was to confirm that the action insofar as asserted against the defendants Daniel M. Crown and Robert Beacher, as individuals, had been dismissed, should have been granted because the causes of action to recover damages for breach of duty of good faith and fraud were properly dismissed by order of the Supreme Court, Kings County, dated December 6, 2000 ( see Sun Plaza Enterprises Corp. v. Crown Theatres, 307 A.D.2d 351 [Appellate Division Docket Nos. 2001-01255 and 2001-04907, decided herewith]).
SANTUCCI, J.P., FEUERSTEIN, SMITH and ADAMS, JJ., concur.