Opinion · New York Court of Appeals

Comiskey v. Arlen

43 N.Y.2d 696

Type: Opinion
Court: New York Court of Appeals
Jurisdiction: New York
Date: 1977-11-17
Topic: general

How later courts describe this case

upholding constitutionality of New York statute which was the model for the New Jersey rule

Citator

UpLaw has not yet analyzed Comiskey v. Arlen. The absence of a flag is not a finding that it is good law.

Cited by: 42 opinions

OPINION OF THE COURT

Memorandum.

Order affirmed, with costs. The formal written recommendation of the medical malpractice panel should not be suppressed on pretrial application. It was premature prior to trial, which might never take place, and which, if it does, might not give rise to considering the issue. And even if the *698 issue arises, it might not result in prejudice to plaintiff. Moreover, issues of constitutionality should not be reached unnecessarily (cf., e.g., Matter of Peters v New York City Housing Auth., 307 NY 519, 527-528). If after trial, and despite the panel’s recommendation of no liability, plaintiff recovers a large judgment, it might no longer matter whether section 148-a of the Judiciary Law establishing the panels deprives a plaintiff of any constitutional rights, or, constitutionality aside, whether the panel made an improper determination on an inadequate basis.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur; Judge Fuchsberg taking no part.

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.