Wilson v. Massapequa General Hosp.

• Decision Date: 24 February 1992
• Citation: 180 A.D.2d 791,580 N.Y.S.2d 403
• Parties: Carol WILSON, etc., Appellant, v. MASSAPEQUA GENERAL HOSPITAL, et al., Defendants, South Shore Diagnostic Center, P.C., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 403

580 N.Y.S.2d 403

180 A.D.2d 791

Carol WILSON, etc., Appellant, v.MASSAPEQUA GENERAL HOSPITAL, et al., DefendantsSouth Shore Diagnostic Center, P.C., Respondent.

Supreme Court, Appellate Division Second Department.

Feb. 24, 1992.

Ross, Suchoff, Taroff, Egart & Hankin, P.C., New York City(Mark Hanking, of counsel), for appellant.

Jones, Hirsch, Connors & Bull, New York City(Kevin Ryan, of counsel), for respondent.

Before BRACKEN, J.P., and O'BRIEN, RITTER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County(Robbins, J.), dated March 1, 1990, which granted the motion of the defendantSouth Shore Diagnostic Center, P.C., to dismiss the complaint insofar as asserted against it pursuant to CPLR 3215(c), and (2) a judgment of the same court, entered April 10, 1990, upon the order.

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 the respondent is awarded one bill of costs.

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 (CPLR 5501[a][1].

Since the plaintiff failed to initiate proceedings for the entry of a default judgment within one year after the default of the defendantSouth Shore Diagnostic Center, P.C., (hereinafter South Shore), the Supreme Court properly dismissed her complaint pursuant to CPLR 3215(c) as to this defendant(see, Rafiq v. Weston, 171 A.D.2d 783, 567 N.Y.S.2d 503;Vierya v. Briggs & Stratton Corp., 166 A.D.2d 645, 646-647, 561 N.Y.S.2d 74;Cousins v. Grant, 166 A.D.2d 494, 495, 560 N.Y.S.2d 694;Manago v. Giorlando, 143 A.D.2d 646, 533 N.Y.S.2d 106;cf., Myers v. Slutsky, 139 A.D.2d 709, 527 N.Y.S.2d 464).Moreover, the record fails to support the plaintiff's contentions that South Shore waived its right to seek dismissal of the complaint under CPLR 3215(c) or that South Shore, or any other party, misled or dissuaded the plaintiff from entering a default judgment within the statutorily prescribed period (Rafiq v. Weston, supra;Myers v. Slutsky, supra;cf., Cutrone v. General Motors Corp., ...