Cross appeals from an order of the Supreme Court, Bronx County (Joseph Cohen, J.), entered on August 23, 1982, and as amended on October 22, 1982, dismissed as nonappealable. (See Matter of Morgenthau v. Hopes, 41 N.Y.2d 1007, mot for rearg den 42 N.Y.2d 825.)
Concur — Sandler, J.P., Sullivan, Carro and Milonas, JJ.
Silverman, J., dissents in a memorandum as follows:
I would not dismiss the appeal but would consider and decide the merits of the appeal. ¶ At least until the dismissal of the motion for leave to appeal in Matter of Morgenthau v. Hopes ( 41 N.Y.2d 1007), it appeared to be the well-established rule reiterated one year before the Hopes decision that "orders granting or denying motions to quash subpoenas in criminal investigations and actions" were directly appealable as "final orders in special proceedings on the civil side of a court vested with civil jurisdiction." ( Matter of Cunningham v. Nadjari, 39 N.Y.2d 314, 317.) I doubt that the Court of Appeals cryptic memorandum in the Hopes case was intended to overrule this line of authority. Even after the Hopes decision, the Court of Appeals, two weeks before the present appeal was argued, referred again to "this court's view that a motion to quash subpoenas, even those issued pursuant to a criminal investigation, is civil by nature and not subject to the rule restricting direct appellate review of orders in criminal proceedings." ( Matter of Abrams [ Anonymous], 62 N.Y.2d 183, 192.) ¶ As the majority of this court is dismissing the appeal without passing on the merits, no useful purpose would be served by my discussing the merits.