Young Ja Suh v. Department of Mental Hygiene

Appeal unanimously dismissed, without costs. Memorandum: Petitioner commenced this article 78 proceeding seeking reinstatement to her former position as a pharmacist at a State mental hospital. Respondent now appeals from an order directing that petitioner be accorded a departmental hearing to review the propriety of her discharge. Such an order is both intermediate and nonfinal and may not be appealed as of right (CPLR 5701, subd [b], par 1; Cirasole v Simins, 48 AD2d 795; Coor Dev. Corp. v Wever, 41 AD2d 689). Since the record does not disclose that permission to appeal was either sought or granted and since the time to seek such leave has expired (see CPLR 5513), the appeal must be dismissed (Cirasole v Simins, supra; Coor Dev. Corp. v Weber, supra). In any event, had respondent moved this court for leave to appeal, under the circumstances of this case, we would have denied the application. (Appeal from order of Oneida Supreme Court—article 78.) Present—Moule, J. P., Dillon, Goldman and Witmer, JJ.