Vivenzio v. City of Utica

• Decision Date: 27 June 1968
• Docket Number: No. 1,1
• Citation: 30 A.D.2d 771,292 N.Y.S.2d 310
• Court: New York Supreme Court — Appellate Division
• Parties: Application of Rocco M. VIVENZIO, Edward F. Butler, and Eugene F. Bersani, Respondents, v. The CITY OF UTICA, New York, and the City Treasurer of Utica, New York, Louis Barile, Appellants.

Page 310

292 N.Y.S.2d 310

30 A.D.2d 771

Application of Rocco M. VIVENZIO, Edward F. Butler, and

Eugene F. Bersani, Respondents, v. The CITY OF UTICA, New York, and the City Treasurer of

Utica, New York, Louis Barile, Appellants.

No. 1.

Supreme Court, Appellate Division, Fourth Department.

June 27, 1968.

Fred Nassar, Nathan J. Siegel, Utica, for appellants.

Longeretta & Longeretta, A. Thomas Longeretta, Utica, for respondents.

Before BASTOW, P.J., and DEL VECCHIO, MARSH, WITMER and HENRY, JJ.

MEMORANDUM:

In this Article 78 proceeding an order was entered February 27, 1968 determining that seven stated issues of fact exist for trial and a further order was entered March 12, 1968 denying appellants' motion to strike certain paragraphs of the petition as scandalous, prejudicial, irrelevant and immaterial and for judgment dismissing the petition upon various grounds founded upon submitted documentary evidence, and appellants appeal from both of said orders.

CPLR 5701 provides in part as follows: '(b) Orders not appealable as of right. An order is not appealable to the appellate division as of right where it: 1. is made in a proceeding against a body or officer pursuant to article 78; or * * * 3. orders or refuses to order that scandalous or prejudicial matter be stricken from a pleading. (c) Appeals by permission. An appeal may be taken to the appellate division from any order which is not appealable as of right in an action originating in the supreme court or a county court by permission of the judge who made the order granted before application to a justice of the appellate division; or by permission of a justice of the appellate division in the department to which the appeal could be taken, upon refusal by the judge who made the order or upon direct application.'

The two orders from which these appeals are taken fall squarely within the quoted provisions of the statute. These statutory provisions are partially an outgrowth of Civil Practice Act, section 1304 which provided that in an Article 78 proceeding there could be no appeal from a nonfinal order except by permission of the court or in conjunction with an appeal from a final order (see Matter of Fischer v. Briante, 6 A.D.2d 814, 175 N.Y.S.2d 301; Matter of Sunland Beverage Corp. v. Rohan, 6 A.D.2d 996, 177 N.Y.S.2d 732; Matter of Hotel Esplanade, Inc. v. Herman, 24 Misc.2d 1086, 200 N.Y.S.2d 157). If permission to appeal had been sought (cf. CPLR 5514(a)), we would have denied the...