dissent in a memorandum by Silver-man, J., as follows: We would affirm the order appealed from. Apart from other problems, the experience with medical malpractice panels established under section 148-a of the Judiciary Law has been that with the ever-increasing volume of medical malpractice cases and the difficulty in assembling medical malpractice panels, the backlog of cases awaiting hearing before medical malpractice hearing panels has constantly increased and trials of medical malpractice actions have been delayed — the Trial Justice said “for years” — while efforts are made to assemble the panels. (In the present case the matter was referred to a medical malpractice panel and a hearing was directed on October 24,1980; in January, 1982 such a panel had not yet been convened for this case.) In the circumstances, it would appear desirable for the Justice presiding in the medical malpractice part (Part 27 in New York County) to have some discretion as to which medical malpractice cases to set down for hearing before a medical malpractice panel, presumably on the basis of the likelihood or unlikelihood that a useful purpose would be served in the particular case by such a hearing. We see nothing in the statute or rules that deprives the Justice of such discretion. Section 148-a of the Judiciary Law merely mandates the establishment of medical malpractice panels. That has been done. This court’s rule 636.1 (22 NYCRR 636.1 [2]) requires that a calendar of all medical malpractice cases “now pending” shall be prepared. That has been done. But we see nothing which requires that when the Justice in the medical malpractice part reaches that case, he has to order a hearing before a medical malpractice panel. In the present case, the Justice presiding in Part 27 determined that the issues in the particular case did not involve much in the way of medical expertise or practice, the question being primarily *531one of whether the anesthetist was available when needed, and of course the damage, if any, from such unavailability. The damage issue may indeed involve some medical expertise. But we cannot say that the Justice in Part 27 abused his discretion in determining that it was unlikely that any useful purpose would be served by ordering that this case be heard before a medical malpractice panel. We disagree with the view of the Justice of Part 27 that it would be unconstitutional to require a medical malpractice hearing in a case involving disputed issues of fact. But we think he did have the discretion to decline to order a medical malpractice hearing in this case. [113 Misc 2d 39.]