Opinion
November 16, 1979
Respondent Workers' Compensation Board moved to dismiss the self-insured employer's appeal from a decision of the board filed March 23, 1979 which ordered the employer to produce certain records pertaining to dust and noxious fumes. Motion granted, without costs, and appeal dismissed. The board's decision clearly does not determine all of the substantive issues in the case nor does it involve a "threshold legal issue which may be dispositive of a claim against one or more parties" (Matter of McDowell v La Voy, 59 A.D.2d 995). Accordingly, such a decision is not appealable at this time but, in a proper case, could be reviewed upon an appeal from the board's final determination of the claim. With respect to appellant's objection to the board's action in returning appellant's notice of appeal with advice that, because its decision was nonfinal, the board would not process the appeal at that time, we agree that the question of appealability of a board decision is ultimately one for this court to pass upon and would simply note that, where an appellant disputes the correctness of the board's judgment regarding the appealability of a decision, the appropriate procedure is for the board to move, as in this case, to dismiss the appeal. Mahoney, P.J., Greenblott, Sweeney, Main and Herlihy, JJ., concur.