Rivera v. Justices of the New York State Supreme Court

— Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 6, 1993, which, in a declaratory judgment action challenging the constitutionality of CPL 450.10 and 450.15, denied plaintiffs motion and granted defendants’ motion for summary judgment, unanimously affirmed, without costs. Sua sponte leave to appeal to the Court of Appeals is hereby granted to appellant. Initially, we note that these particular defendants, who are not in an adversarial position to the plaintiff, are inappropriate parties against whom to seek declaratory relief. As the IAS Court noted, quite aside from whether the instant declaratory judgment action is a proper vehicle for testing the constitutionality of CPL 450.10 and 450.15 insofar as they limit a defendant’s right to appeal from the denial of CPL 440.10 motion (see, Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert denied 464 US 993), recent precedent in this Department squarely holds that such an order is not final but intermediate in nature, and, as such, the Legislature may constitutionally impose conditional limitations on the right of appeal (People v Thomas, 183 AD2d 457, lv denied 80 NY2d 934; accord, People v Ghee, 153 AD2d 954 [2d Dept], lv denied 76 NY2d 735; People v Simmonds, 182 AD2d 650 [2d Dept], lv denied 80 NY2d 910). Concur — Rosenberger, J. P., Wallach, Kupferman, Ross and Tom, JJ.