Tracy v. Islam

Appellate Division of the Supreme Court of New York

Tracy v. Islam

127 A.D.2d 928, 512 N.Y.S.2d 287, 1987 N.Y. App. Div. LEXIS 43420

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 19, 1987

StatusPublished

Cited by3 cases

This text of 127 A.D.2d 928 (Tracy v. Islam) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tracy v. Islam, 127 A.D.2d 928, 512 N.Y.S.2d 287, 1987 N.Y. App. Div. LEXIS 43420 (N.Y. Ct. App. 1987).

Pincite

Opinion

Main J. P.

Appeal from an order of the Supreme Court (Shea, J.), entered June 26, 1986 in St. Lawrence County, which denied defendants’ motion for leave to appeal from the court’s order vacating the determination of a medical malpractice panel and directing that a new panel be convened.

At issue in this case is whether an order granting a plain[929]*929tiff’s motion to vacate the findings of a medical malpractice panel is appealable to this court as of right. Defendants concede that an order denying such a motion is appealable by permission only (see, Shaw v Oo H. Kyong, 96 AD2d 1124). It is their position, however, that an order granting the motion affects a substantial right and is therefore directly appealable, citing Salmarco v Cross County Hosp. (114 AD2d 331). We note that this case presents a different matter from that presented by Salmarco and are of the opinion that the order presented here is not appealable as of right.

In Salmarco, a medical malpractice panel made a finding of malpractice against a doctor, but Special Term vacated that finding, effectively changing the panel’s recommendation. The First Department found that Special Term’s order "affect[ed] a substantial right, in view of the fact that this order substantively changed the Panel’s recommendation by vacating the finding of liability” (supra, at 332). Here, however, Supreme Court’s order does not result in the panel’s finding of no liability being changed to a finding of liability, affecting defendants’ substantial rights; it simply orders that a new panel be convened to consider newly discovered evidence. Under these circumstances, we believe that an order vacating the panel’s findings is not appealable as of right.

In the alternative, defendants assert that Supreme Court erred in denying their motion for permission to appeal. We disagree. Permission to appeal an order such as that present here is to be granted upon a determination of good cause shown (Colligan v Sumner, 112 AD2d 265). We do not find any of the grounds set forth by defendants to constitute this demonstration of good cause. Accordingly, Supreme Court did not err in denying permission to appeal.

Order affirmed, with costs. Main, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.

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Main J. P.

Appeal from an order of the Supreme Court (Shea, J.), entered June 26, 1986 in St. Lawrence County, which denied defendants’ motion for leave to appeal from the court’s order vacating the determination of a medical malpractice panel and directing that a new panel be convened.

At issue in this case is whether an order granting a plain[929]*929tiff’s motion to vacate the findings of a medical malpractice panel is appealable to this court as of right. Defendants concede that an order denying such a motion is appealable by permission only (see, Shaw v Oo H. Kyong, 96 AD2d 1124). It is their position, however, that an order granting the motion affects a substantial right and is therefore directly appealable, citing Salmarco v Cross County Hosp. (114 AD2d 331). We note that this case presents a different matter from that presented by Salmarco and are of the opinion that the order presented here is not appealable as of right.

In Salmarco, a medical malpractice panel made a finding of malpractice against a doctor, but Special Term vacated that finding, effectively changing the panel’s recommendation. The First Department found that Special Term’s order "affect[ed] a substantial right, in view of the fact that this order substantively changed the Panel’s recommendation by vacating the finding of liability” (supra, at 332). Here, however, Supreme Court’s order does not result in the panel’s finding of no liability being changed to a finding of liability, affecting defendants’ substantial rights; it simply orders that a new panel be convened to consider newly discovered evidence. Under these circumstances, we believe that an order vacating the panel’s findings is not appealable as of right.

In the alternative, defendants assert that Supreme Court erred in denying their motion for permission to appeal. We disagree. Permission to appeal an order such as that present here is to be granted upon a determination of good cause shown (Colligan v Sumner, 112 AD2d 265). We do not find any of the grounds set forth by defendants to constitute this demonstration of good cause. Accordingly, Supreme Court did not err in denying permission to appeal.

Order affirmed, with costs. Main, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.

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Bluebook (online)

127 A.D.2d 928, 512 N.Y.S.2d 287, 1987 N.Y. App. Div. LEXIS 43420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracy-v-islam-nyappdiv-1987.

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