Allone v. University Hosp. of New York University Medical Center

• Decision Date: 20 April 1998
• Citation: 671 N.Y.S.2d 500,249 A.D.2d 430
• Parties: , 1998 N.Y. Slip Op. 3510 Linda ALLONE, etc., Appellant, v. UNIVERSITY HOSPITAL OF NEW YORK UNIVERSITY MEDICAL CENTER, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 500

671 N.Y.S.2d 500

249 A.D.2d 430, 1998 N.Y. Slip Op. 3510

Linda ALLONE, etc., Appellant, v. UNIVERSITY HOSPITAL OF NEW YORK UNIVERSITY MEDICAL CENTER etc., et al., Respondents.

Supreme Court, Appellate Division Second Department.

April 20, 1998.

Weicholz, Montelone, Peters, Scharaga & Studley, L.L.P., Brooklyn (Scott T. Horn, of counsel), for appellant.

Aarsonson, Rappaport, Feinstein & Deutsch, L.L.P., New York City (Steven C. Mandell, of counsel; Elliott Zucker, on the brief), for respondents University Hospital of New York University Medical Center, Sam Grubman, Fred Epstein, M.D., P.C., Fred Danzigner, Barry Zide, Jeffrey Wissof, Seline Jaramillo and Pierro Caruso.

Ivone, Devine & Jensen, Lake Success (James C. Brady, of counsel), for respondents Neil Kutin and BSK Pediatric Surgical Associates, P.C.

Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Diane E. Doxey, of counsel), for respondent Samuel Stone, M.D., P.C.

Before ROSENBLATT, J.P., and MILLER, RITTER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, the plaintiff appeals from (1) a decision of the Supreme Court, Kings County (Patterson, J.), dated December 10, 1996, (2) an order of the same court, dated January 15, 1997, granting the defendants' respective motions to dismiss the plaintiff's complaint for failure to prosecute, and (3) a judgment of the same court, entered February 19, 1997, upon the order, which dismissed the complaint.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Ojeda v. Metropolitan Playhouse, 120 A.D.2d 717, 502 N.Y.S.2d 776; Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1] ).

The instant medical malpractice action was commenced in May 1988. After issue had been joined and depositions of the defendants completed in November 1991, 90-day demands pursuant to CPLR 3216 were served on the plaintiff on July 31, 1992, September 28, 1992, and November 2, 1992. It is undisputed that a note of issue was not filed within the applicable time periods nor was an application ever made by the plaintiff to vacate the demands or to extend the time to file the note of issue.

In August 1994 the defendants moved to dismiss the complaint for failure to prosecute the action. The court subsequently issued two conditional orders granting the defendants' motions to dismiss the complaint unless the plaintiff complied with the defendants' discovery demands, including several physical examinations. The plaintiff failed to timely comply with the conditional orders. On May 31, 1995, the parties stipulated that discovery was completed and that the plaintiff "may" file a note of issue.

Thereafter, in January 1996 the Supreme Court denied the defendants' motion and cross motion for summary judgment. In May 1996 two of the defendants moved to dismiss the complaint based upon the plaintiff's failure to prosecute the action. The remaining defendants subsequently moved for similar relief. The Supreme Court granted the defendants' respective motions and dismissed the complaint. We affirm.

Where a party is served with a 90-day notice pursuant to CPLR 3216 and fails to comply with the notice by filing a note of issue or by moving, before the default date, to either vacate the notice or extend the 90-day period (see, Hayden v. Jones, 244 A.D.2d 316, 665 N.Y.S.2d 539; Rubin v. Baglio, 234 A.D.2d 534, 651 N.Y.S.2d 614; Lopez v. Pathmark Supermarket, 229 A.D.2d 566, 645...