Shankman v. Consolidated Edison Co. , 420 N.Y.S.2d 960 ( 1979 )

OPINION OF THE COURT

Memorandum.

Appeal from order (see 94 Misc 2d 150) dismissed, without costs.

The denial of defendant’s motion to dismiss for failure to make out a prima facie case is a ruling made during the course of the trial and is not appealable either as of right or by permission (CCA, § 1702; see Covell v H.R.H. Constr. Corp., 17 NY2d 709, affg 24 AD2d 566; Richardson v Wengatz, 33 AD2d 947). However, were the appeal properly before us, we would be inclined to reverse (see Lo Vico v Consolidated Edison Co., 99 Misc 2d 897).

Concur: Pino, P. J. and Buschmann, J.; Weinstein, J., taking no part.