Canosa v. Abadir

Appellate Division of the Supreme Court of New York

Canosa v. Abadir

221 A.D.2d 579, 635 N.Y.S.2d 490, 1995 N.Y. App. Div. LEXIS 12472

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 27, 1995

StatusPublished

Cited by2 cases

This text of 221 A.D.2d 579 (Canosa v. Abadir) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Canosa v. Abadir, 221 A.D.2d 579, 635 N.Y.S.2d 490, 1995 N.Y. App. Div. LEXIS 12472 (N.Y. Ct. App. 1995).

Pincite

Opinion

—In an action to recover damages for medical malpractice, (1) the defendant Dale M. Abadir appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), dated April 12, 1993, as denied his motion for summary judgment dismissing the complaint insofar as it is asserted against him, and (2) the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Silverman, J.), dated July 25, 1994, which granted the application by Dale M. Abadir to dismiss the complaint insofar as it is asserted against him, granted the cross motion by the defendant Michael F. Morrissey to dismiss the complaint as to him, and dismissed the complaint.

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

Ordered that the order and judgment is affirmed; and it is further,

Ordered that the defendants appearing separately and filing separate briefs are 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 NY2d 241, 248). 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]).

[580]*580The Supreme Court properly dismissed the complaint for want of prosecution pursuant to CPLR 3216. The plaintiff unreasonably delayed the prosecution of her claims for at least six years after her representation by counsel in this case ended. At that point, the action was already five years old.

Moreover it was proper for the court to dismiss the action pursuant to CPLR 3126, which provides for imposition of penalties for refusal to comply with court orders. The plaintiff had refused, without just cause, to obey the court’s previous order that she submit to the defendants’ outstanding demands for physical and psychological examinations (see, CPLR 3121). Bracken, J. P., Sullivan, Miller and Copertino, JJ., concur.

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—In an action to recover damages for medical malpractice, (1) the defendant Dale M. Abadir appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), dated April 12, 1993, as denied his motion for summary judgment dismissing the complaint insofar as it is asserted against him, and (2) the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Silverman, J.), dated July 25, 1994, which granted the application by Dale M. Abadir to dismiss the complaint insofar as it is asserted against him, granted the cross motion by the defendant Michael F. Morrissey to dismiss the complaint as to him, and dismissed the complaint.