PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.

DOCKET NO. CA 16-00435

JULIE CLACK AND COLLIN CLACK, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF AN INFANT, NATHALIE CLACK, PLAINTIFF-APPELLANT, V MAGDI E. SAYEGH, M.D., ET AL., DEFENDANTS, SISTERS OF CHARITY HOSPITAL, CATHOLIC HEALTH SYSTEMS, INC., JODI BALL, M.D., JAIME REHMANN, M.D., ROBIN BOCKACKI, N.N.P., DEFENDANTS-RESPONDENTS. MAGDI E. SAYEGH, M.D., THIRD-PARTY PLAINTIFF, V VASANTHA KUMAR. M.D., THIRD-PARTY DEFENDANT.

Respondents Sisters of Charity Hospital and Catholic Health System, Inc. having moved, pursuant to CPLR 5513 and 5701, to dismiss the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on November 30, 2015, on the ground that the order is not appealable and plaintiffs have failed to seek permission to appeal the order,

Now, upon reading and filing the affirmations of Amy Archer Flaherty, Esq., dated March 15, 2016, and April 1, 2016, the notice of motion with proof of service thereof, and the affirmation of Carol A. McKenna, Esq., dated March 28, 2016, and due deliberation having been had thereon,

It is hereby ORDERED that the motion is denied, and

It is further ORDER that plaintiffs are hereby granted permission to appeal.

Memorandum: "Even assuming, arguendo, that [movant] is correct that . . . the order is not appealable as of right, we exercise our discretion to deem the notice of appeal . . . to be an application pursuant to CPLR 5701 (c) for permission to appeal, and we grant such permission" (Mayer v Hoang, 83 AD3d 1516, 1518 [citations omitted]).

Entered: April 12, 2016

Frances E. Cafarell, Clerk