Nodelman v. Codd

61 A.D.2d 771, 402 N.Y.S.2d 21, 1978 N.Y. App. Div. LEXIS 10172

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 1978
• Status: Published

Opinion

—Appeal from an order of Supreme Court, New York County, entered August 24, 1977, in an article 78 proceeding which sought, inter alia, to annul respondents’ determination denying petitioner’s application for accidental disability retirement, which order granted the petition to the extent of annulling said determination with the recommendation that a new examination be had by impartial physicians selected by the board of trustees and that there be a redetermination of petitioner’s application for a service connected pension after receipt of a further report by the medical board, unanimously dismissed, without costs or disbursements. Such further action, as recommended by Special Term, is not purely ministerial in character, but requires the exercise of quasi-judicial responsibility with respect to the issues, and hence the order is intermediate, and not final, and is not appealable as of right but only upon obtaining permission to appeal (CPLR 5701, subd [b], par 1; see Matter of North Amer. Holding Corp. v Murdock, 6 AD2d 596, affd 6 NY2d 902). If permission to appeal had been sought, the application would have been denied. Concur—Lupiano, J. P., Birns, Evans, Lane and Sullivan, JJ.