Fallon v. Loree

101 A.D.2d 1014, 476 N.Y.S.2d 679, 1984 N.Y. App. Div. LEXIS 18745

Opinion

— Appeal unanimously dismissed, without costs. Memorandum: Plaintiff appeals from an order denying his motion to finalize a medical malpractice panel hearing report, dated March 29, 1983 which contained informal unanimous findings of liability against defendant Paul L. Loree, M.D., and no liability against defendant Kenmore Mercy Hospital. H On March 31, 1983 the physician panelist informed the judicial panelist by telephone that he wished to change his vote to one of no liability against defendant doctor. As a result, the judicial panelist sent to plaintiff’s attorney an amended hearing report dated March 31,1983, stating that the panel made no recommendation regarding Dr. Loree and reaffirming its unanimous finding of no liability as to defendant hospital. By letter dated March 31, 1983 and received by the judicial panelist on April 4, 1983, the physician panelist explained his request to change his vote on the basis that he “was confused by the chronology of events initially and by the last minute submission of written briefs presented by both attorneys] which [he] had no time to review.” 11 We need not reach the merits of plaintiff’s appeal because the order is not appealable as of right (see Kletnieks v Brookhaven Mem. Assn., 53 AD2d 169, 174) and no appropriate application was made for permission to appeal (see CPLR 5701, subd [c]; Bryant v University of Rochester, 72 AD2d 965; cf. Marrico v Misericordia Hosp., 59 AD2d 680). Since section 148-a of the Judiciary Law was enacted to expedite the disposition of malpractice cases and reduce the cost of such litigation, entertaining this appeal would impede the intended effect of the statute (see Musso v Westfield Mem. Hosp., 64 AD2d 851, app dsmd 45 NY2d 834; Graney Dev. Corp. v Taksen, 66 AD2d 1008). On this record, we think dismissal of the appeal is the preferable course, without prejudice to plaintiff to argue the merits on appeal, if there is one, from a judgment after trial (Conklin v Montefiore Hosp. & Med. Center, 74 AD2d 792). (Appeal from order of Supreme Court, Erie County, Marshall, J. — medical malpractice panel hearing report.) Present — Dillon, P. J., Denman, Boomer, Green and Schnepp, JJ.