
    In the Matter of City of Newark et al., Appellants, v Law Department of the City of New York et al., Respondents. Deloitte & Touche, Intervenor-Respondent.
    [779 NYS2d 59]
   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 a CFLR article 78 proceeding (305 AD2d 28 [2003]), 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.

The appeal is from a nonfinal 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 AD2d 289 [1997]). Leave to appeal (CPLR 5701 [c]) has not been requested, and we do not deem this an appropriate instance to grant such relief sua sponte 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. at 289, comparing Matter of Swartz v Wallace, 87 AD2d 926, 927 [1982]; Kopstein v City of New York, 87 AD2d 547 [1982]). Were we to consider the merits, we would find, inter alia, that the order is in accordance with this Court’s remand. Concur—Buckley, P.J., Tom, Saxe, Sullivan and Friedman, JJ.  