Comiskey v. Arlen, 43 N.Y.2d 696

Comiskey v. Arlen

43 N.Y.2d 696 | NY | 1977

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 *698issue 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.