
    Harold Shankman, Respondent, v Consolidated Edison Co., Appellant.
    Supreme Court, Appellate Term, Second Department,
    April 17, 1979
    APPEARANCES OF COUNSEL
    
      Ernest J. Williams and Joseph J. Klem for appellant. Rosengarten & Weinreich (Howard B. Weinreich of counsel), for New York State Food Merchants Association, Inc., amicus curiae. B. Robert Piller and Jill Kupferberg for Public Utility Law Project, amicus curiae.
    
   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.  