BARRY v. GOOD SAMARITAN HOSPITAL

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order reversed, with costs, and the case remitted to the Appellate Division. The Appellate Division exercises the same discretion as does Special Term and may modify a Special Term order in the exercise of discretion even though it cannot be said that Special Term abused its discretion ( Matter of Attorney-General of State of N.Y. v Katz, 55 N.Y.2d 1015, 1017). Here, however, the Appellate Division's modification was on the law. Because the Special Term order was not an abuse of discretion as a matter of law, there must be a reversal of the Appellate Division order and a remittal to that body for its further consideration on the facts and in the exercise of discretion.

Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.