Calabrese v. Montalbano

163 A.D.2d 593, 559 N.Y.S.2d 34, 1990 N.Y. App. Div. LEXIS 10123

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 30, 1990
• Status: Published

Opinion

In a medical malpractice action, the defendant Montalbano appeals from an order of the Supreme Court, Queens County (Nahman, J.), dated September 1, 1988, which denied his motion to designate a general practitioner as an additional physician on a medical malpractice panel.

Ordered that the appeal is dismissed, without costs or disbursements.

An order denying a motion to designate a specific type of practitioner as a panelist on a medical malpractice panel is not appealable as of right pursuant to CPLR 5701 (see, Kletnieks v Brookhaven Mem. Assn., 53 AD2d 169, 174; 7 Weinstein-Korn-Miller, NY Civ Prac ¶ 5701.16b). The legislative intent underlying Judiciary Law § 148-a was to provide an expeditious and informal resolution of malpractice litigation. To permit appeals as of right from orders of this kind would thwart the legislative intent (see, Kletnieks v Brookhaven Mem. Assn., supra). Furthermore, Judiciary Law § 148-a (8) permits counsel to explore the claimed underlying infirmities of nonbinding panel determinations at the trial of the action. Thus, an appeal from an order denying relief with respect to a medical malpractice panel is permitted only by leave upon a demonstration of good cause shown (see, Sniedze v South Nassau Community Hosp., 147 AD2d 630; Colligan v Sumner, 112 AD2d 265; Kletnieks v Brookhaven Mem. Assn., supra). We find that the appellant has failed to sustain his burden of demonstrating "good cause” to warrant granting leave to appeal from the order in question (see, Judiciary Law § 148-a [6]; Ceriello v Brunswick Hosp. Center, 157 AD2d 701, citing Bernstein v Bodean, 53 NY2d 520, 528-529; Kletnieks v Brookhaven Mem. Assn., supra). Bracken, J. P., Kunzeman, Fiber and O’Brien, JJ., concur.