Comiskey v. Arlen
| Citation | 401 N.Y.S.2d 200,43 N.Y.2d 696 |
| Parties | , 372 N.E.2d 34 Mitchell COMISKEY, an infant, by Leo Comiskey, his guardian, et al., Appellants, v. Myron ARLEN et al., Respondents, Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor-Respondent. |
| Decision Date | 17 November 1977 |
| Court | New York Court of Appeals |
Order affirmed, with costs. The formal written recommendation of the medical malpractice panel should not be suppressed on pretrial application. It was premature prior to trial, which might never take place, and which, if it does, might not give rise to considering the issue. And even if the issue arises, it might not result in prejudice to plaintiff. Moreover, issues of constitutionality should not be reached unnecessarily (cf., e. g., Matter of Peters v. New York City Housing Auth., 307 N.Y. 519, 527-528, 121 N.E.2d 529, 531, 532). If after trial, and despite the panel's recommendation of no liability, plaintiff recovers a large judgment, it might no longer matter whether section 148-a of the Judiciary Law establishing the panels deprives a plaintiff of any constitutional rights, or, constitutionality aside, whether the panel made an improper determination on an inadequate basis.
FUCHSBERG, J., taking no part.
Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.
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