Amato v. Chafel

— Order unanimously affirmed, without costs. Memorandum: In this medical malpractice action plaintiff appeals the denial of her application to vacate the panel’s decision because the attorney member thereof lacked the "trial experience” required by Judiciary Law § 148-a (2) (b). Special Term denied plaintiff’s motion to vacate, but granted plaintiff leave to appeal from its order (CPLR 5701 [c]; Shaw v Kyong, 96 AD2d 1124). We find plaintiff’s application to be untimely (see, Judiciary Law § 148-a [2] [d]). It is undisputed that plaintiff did not object to the attorney’s qualifications to sit as a member of the panel until some seven months after the panel rendered its decision and just three weeks prior to trial. Moreover, considering the nonbinding nature of the panel recommendation and the fact that plaintiff can call the attorney member of the panel to testify as a witness at trial with reference to his qualifications related to and his participation in the panel’s recommendation (Judiciary Law § 148-a [8]; Felner v Shapiro, 94 AD2d 317, 319), it does not appear that the denial of plaintiff’s application has affected any substantial right or prejudiced plaintiff’s right to a meaningful trial (see, Treyball v Clark, 65 NY2d 589; Comiskey v Arlen, 43 NY2d 696, 697-698). (Appeal from order of Supreme Court, Monroe County, Scudder, J. — vacate Malpractice Panel decision.) Present — Callahan, J. P., Boomer, Green and Schnepp, JJ.