Cirasole v. Simins

48 A.D.2d 795, 369 N.Y.S.2d 423, 1975 N.Y. App. Div. LEXIS 9982

Opinion

Appeal from the order (erroneously denominated as a judgment) of the Supreme Court, New York County, entered November 27, 1974, which remanded the matter to the respondent for clarification and hearing, unanimously dismissed, without costs or disbursements. The order appealed from is nonfinal, the Supreme Court having remanded the matter to the respondent for further proceedings which necessitated the taking of additional proofs as well as respondent’s exercise of "residual discretion” (Matter of North Amer. Holding Corp. v Murdock, 6 AD2d 596, affd 6 NY2d 902). Accordingly, since the appeal is from an intermediate order in an article 78 proceeding, it was improperly taken as a matter of right (CPLR 5701, subd [b]), such appeal being authorized by statute only upon obtaining permission from the Judge who made the order or from a Justice of the Appellate Division. (CPLR 5701, subd [c].) Since no permission to appeal was obtained, the appeal must be dismissed. (Hawley v Town of Aurora, 41 AD2d 588; Matter of Altschul v Butterfield Farms, 40 AD2d 654; Matter of Vivenzio v City of Utica, 30 AD2d 771.) However, in dismissing the appeal, costs are denied since respondent only raised the issue of appealability for the first time in its brief on appeal, rather than making an appropriate motion to dismiss prior to the filing of the record and briefs. (Matter of Altschul v Butterfield Farms, supra.) Concur—Stevens, P. J., Iiupferman, Murphy, Tilzer and Capozzoli, JJ.