Shaw v. Kyong

96 A.D.2d 1124, 466 N.Y.S.2d 872, 1983 N.Y. App. Div. LEXIS 19786

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 16, 1983
• Status: Published

Opinion

— Defendant moves to dismiss plaintiff’s appeal taken from an order dated April 6, 1983, which denied plaintiff’s motion to vacate a finding of a medical malpractice panel (see Judiciary Law, § 148-a). Since such an order is not appealable as of right (see Marrico v Misericordia Hosp., 59 AD2d 680; Kletniecks v Brookhaven Mem. Assn., 53 AD2d 169) defendant’s motion is granted, without costs. Plaintiff cross-moves for permission to appeal from the subject order. It is our view that, pursuant to CPLR 5701 (subd [c]), such an order is appealable by permission (contra Marrico v Misericordia Hosp., supra) and that such permission may be granted by the Judge who made the order or a Justice of this court (but see Kletniecks v Brookhaven Mem. Assn., supra, p 174). In the instant case, since plaintiff has failed to demonstrate good cause to grant permission to appeal, the cross motion is denied, without costs. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Levine, JJ., concur.