Opinion
3986.
Decided June 22, 2004.
Appeal from order, Supreme Court, New York County (William A. Wetzel, J.), entered on or about March 8, 2004, which, pursuant to this Court's remand in an article 78 proceeding ( 305 A.D.2d 28), establishes a procedure for determining which, if any, of the records relating to the pending arbitration between respondent City of New York and the Port Authority of New York and New Jersey and sought by petitioner City of Newark pursuant to the Freedom of Information Law (FOIL) are exempt from FOIL disclosure, unanimously dismissed, without costs.
Weiner Lesniak, LLP, Parsippany, N.J. (Richard L. Rudin, of the New Jersey Bar, admitted pro hac vice, of counsel), and Snow Becker Krauss, P.C., New York (Ronald Herzog of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), for municipal respondents.
Before: Buckley, P.J., Tom, Saxe, Sullivan, Friedman, JJ.
The appeal is from a non-final order in an article 78 proceeding that is not appealable as of right (CPLR 5701[b][1]; see Rehab v. New York City Commn. on Human Rights, 238 A.D.2d 289). Leave to appeal (CPLR 5701[c]) has not been requested, and we do not deem this an appropriate instance to grant such relief suasponte because, among other reasons, the order appealed from is akin to an evidentiary or scheduling ruling made in the midst of trial, and does not appear to implicate the merits ( see id. comparing Matter of Swartz v. Wallace, 87 A.D.2d 926, 927; Kopstein v. City of New York, 87 A.D.2d 547). Were we to consider the merits, we would find, inter alia, that the order is in accordance with this Court's remand
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.