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Matter of Leung v. Dept. of Motor Vehicles

Appellate Division of the Supreme Court of New York, First Department
Nov 28, 1978
65 A.D.2d 736 (N.Y. App. Div. 1978)

Opinion

November 28, 1978


Appeal from order, denominated a judgment, Supreme Court, New York County, entered August 2, 1977, which granted the petition in this article 78 proceeding to the extent of annulling respondent's determination and remanding the matter to it for a new hearing, unanimously dismissed, without costs or disbursements. The remand directed by the order will require further fact finding and adjudication as to which respondent is unfettered by any directive of Special Term. In that sense, the remand is not merely ministerial. (See Matter of Mid-Island Hosp. v Wyman, 15 N.Y.2d 374, 379; 7 Weinstein-Korn-Miller, N Y Civ Prac, par 5701.26a.) Consequently, the order is a nonfinal one in an article 78 proceeding from which an appeal does not lie as of right. (CPLR 5701, subd [b], par 1.) Permission to appeal was required from the Special Term Justice or from a Justice of this court. (CPLR 5701, subd [c].) No such permission was obtained. Accordingly, the appeal must be dismissed. (Cirasole v Simins, 48 A.D.2d 795.) In the circumstances of this case, none of us would have granted an application for leave to appeal. (See Matter of Wallace v Wyandanch Union Free School Dist., 58 A.D.2d 813; Matter of Young Ja Suh v New York State Dept. of Mental Hygiene, 58 A.D.2d 738.) Finally, we accompany our dismissal with a directive that no further time be afforded respondent within which to move for permission to appeal. (CPLR 5514, subd [a].)

Concur — Kupferman, J.P., Birns, Evans and Lane, JJ.


Summaries of

Matter of Leung v. Dept. of Motor Vehicles

Appellate Division of the Supreme Court of New York, First Department
Nov 28, 1978
65 A.D.2d 736 (N.Y. App. Div. 1978)
Case details for

Matter of Leung v. Dept. of Motor Vehicles

Case Details

Full title:In the Matter of FAU T. LEUNG, Respondent, v. DEPARTMENT OF MOTOR VEHICLES…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 28, 1978

Citations

65 A.D.2d 736 (N.Y. App. Div. 1978)

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