Leung v. Department of Motor Vehicles

65 A.D.2d 736, 410 N.Y.S.2d 616, 1978 N.Y. App. Div. LEXIS 13540

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1978
• Status: Published

Opinion

Appeal from order, denominated a judgment, Supreme Court, New York County, entered August 2, 1977, which granted the petition in this article 78 proceeding to the extent of annulling respondent’s determination and remanding the matter to it for a new hearing, unanimously dismissed, without costs or disbursements. The remand directed by the order will require further fact finding and adjudication as to which respondent is unfettered by any directive of Special Term. In that sense, the remand is not merely ministerial. (See Matter of Mid-Island Hosp. v Wyman, 15 NY2d 374, 379; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5701.26a.) Consequently, the order is a nonfinal one in an article 78 proceeding from which an appeal does not lie as of right. (CPLR 5701, subd [b], par 1.) Permission to appeal was required from the Special Term Justice or from a Justice of this court. (CPLR 5701, subd [c].) No such permission was obtained. Accordingly, the appeal must be dismissed. (Cirasole v Simins, 48 AD2d 795.) In the circumstances of this case, none of us would have granted an application for leave to appeal. (See Matter of Wallace v Wyandanch Union Free School Dist., 58 AD2d 813; Matter of Young Ja Suh v New York State Dept, of Mental Hygiene, 58 AD2d 738.) Finally, we accompany our dismissal with a directive that no further time be afforded respondent within which to move for permission to appeal; (CPLR 5514, subd [a].) Concur—Kupferman, J. P., Birns, Evans and Lane, JJ.