Opinion
January 18, 1973
Appeal from the Erie Special Term.
Present — Del Vecchio, J.P., Marsh, Witmer, Moule and Cardamone, JJ.
Appeal unanimously dismissed, with costs to respondents. Memorandum: This article 78 proceeding was brought by petitioners, who own land along Mill Road in the Town of Aurora, alleging that the road had become impassable and they seek to compel respondents to maintain it as a town highway. Repondents, alleging that it had been abandoned, moved to dismiss on the grounds that the petition failed to state facts sufficient to entitle petitioners to the relief requested, that the proceeding was barred by the Statute of Limitations and by petitioners' laches. Without obtaining permission respondents served a notice of appeal from an order denying their motion to dismiss the petition and granting a trial on issues of fact. CPLR 5701 provides in part: "(b) Orders not appealable as of right. An order is not appealable to the appellate division as of right where it: 1. is made in a proceeding against a body or officer pursuant to article 78; or * * * (c) Appeals by permission. An appeal may be taken to the appellate division from any order which is not appealable as of right in an action originating in the supreme court or a county court by permission of the judge who made the order granted before application to a justice of the appellate division; or by permission of a justice of the appellate division in the department to which the appeal could be taken, upon refusal by the judge who made the order or upon direct application." The order was an intermediate one from which an appeal may not be taken without permission ( Matter of Vivenzio v. City of Utica, 30 A.D.2d 771; Matter of Sunland Beverage Corp. v. Rohan, 6 A.D.2d 996; Matter of Johnson v. Dreher, 278 App. Div. 1019; 7 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5701.26).