Opinion
February 19, 1987
Appeal from the Supreme Court, St. Lawrence County (Shea, J.).
At issue in this case is whether an order granting a plaintiff'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 A.D.2d 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 A.D.2d 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 A.D.2d 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.