People ex rel. Afrika v. Russi

204 A.D.2d 1062, 613 N.Y.S.2d 99, 1994 N.Y. App. Div. LEXIS 6961

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1994
• Status: Published

Opinion

—Appeal unanimously dismissed. Memorandum: An appeal from a nonfinal intermediate order in a CPLR article 78 proceeding does not lie as of right (CPLR 5701 [b] [1]; see, Matter of Zeller v Board of Educ., 189 AD2d 877; Matter of Luebbe v Town of Brookhaven Zoning Bd. of Appeals, 120 ; Hawley v Town of Aurora, 41 AD2d 588). Such an appeal is authorized only upon permission of the Judge who made the order or from a Justice of the Appellate Division (see, CPLR 5701 [c]; see also, Matter of Driscoll v Department of Fire, 112 AD2d 751). Here, no permission has been sought. Moreover, it would be inappropriate to grant permission where, as here, Supreme Court remitted the matter to the New York State Board of Parole to make a new determination. (Appeal from Order of Supreme Court, Cayuga County, Corning, J.—Article 78.) Present—Denman, P. J., Green, Balio, Wesley and Davis, JJ.