Barry v. Good Samaritan Hospital

438 N.E.2d 1128, 56 N.Y.2d 921, 453 N.Y.S.2d 413, 1982 N.Y. LEXIS 3511

Opinion

OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, and the case remitted to the Appellate Division. The Appellate Division exercises the same discretion as does Special Term and may modify a Special Term order in the exercise of discretion even though it cannot be said that Special Term abused its discretion (Matter of Attorney-General of State of N. Y. v Katz, 55 NY2d 1015, 1017). Here, however, the Appellate Division’s modification was on the law. Because the Special Term order was not an abuse of discretion as a matter of law, there must be a reversal of the Appellate Division order and a remittal to that body for its further consideration on the facts and in the exercise of discretion.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.