Opinion
April 17, 1979
Appeal from the Civil Court of the City of New York, Kings County, Small Claims Part, BERNARD KLIEGER, J.
Ernest J. Williams and Joseph J. Klem for appellant.
Rosengarten Weinreich (Howard B. Weinreich of counsel), for New York State Food Merchants Association, Inc., amicus curiae. B. Robert Piller and Jill Kupferberg for Public Utility Law Project, amicus curiae.
MEMORANDUM.
Appeal from order (see 94 Misc.2d 150) dismissed, without costs.
The denial of defendant's motion to dismiss for failure to make out a prima facie case is a ruling made during the course of the trial and is not appealable either as of right or by permission (CCA, § 1702; see Covell v H.R.H. Constr. Corp., 17 N.Y.2d 709, affg 24 A.D.2d 566; Richardson v Wengatz, 33 A.D.2d 947). However, were the appeal properly before us, we would be inclined to reverse (see Lo Vico v Consolidated Edison Co., 99 Misc.2d 897).
Concur: PINO, P.J. and BUSCHMANN, J.; WEINSTEIN, J., taking no part.