Weber v. Kessler
| Decision Date | 13 February 1996 |
| Citation | 638 N.Y.S.2d 144,224 A.D.2d 520 |
| Parties | Harriet WEBER, et al., Appellants, v. Anson KESSLER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Goldrich & Cullen, Monroe (John J. Cullen, of counsel), for appellants.
Meiselman, Farber, Packman & Eberz, P.C., Poughkeepsie, (David J. Squirrell, of counsel), for respondent.
Before MANGANO, P.J., and THOMPSON, FRIEDMANN and FLORIO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for dental malpractice, the plaintiffs appeal from (1) an order of the Supreme Court, Dutchess County (Juidice, J.), entered May 13, 1994, which granted the defendant's motion pursuant to CPLR 3216 to dismiss their complaint for failure to prosecute and denied their cross motion, inter alia, for an extension of time to file a note of issue and certificate of readiness, and (2) a judgment of the same court, entered July 28, 1994, which is in favor of the defendant and against the plaintiffs dismissing the complaint.
ORDERED that the plaintiffs are awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with 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 the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1] ).
Pursuant to a preliminary conference order dated July 7, 1992, the plaintiffs were directed to file a note of issue and certificate of readiness on or before October 30, 1992. When they failed to do so, the defendant served them with a written demand pursuant to CPLR 3216, dated September 29, 1993, to serve and file a note of issue within 90 days. On November 24, 1993, the defendant moved to dismiss the action for failure to prosecute. The Supreme Court granted the defendant's motion and dismissed the complaint. We reverse.
Since the defendant's motion to dismiss was served before the expiration of the...
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