DeLucia v. Bernstein

272 A.D.2d 569, 709 N.Y.S.2d 422, 2000 N.Y. App. Div. LEXIS 6025

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 2000
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the of the Supreme Court, Nassau County (McCarty, J.), dated May 6, 1999, which granted the defendants’ respective motions to dismiss the complaint as time-barred, and (2) a judgment of the same court, entered August 19, 1999, which, upon the order, dismissed the complaint. The notice of appeal from the order is also deemed a notice of appeal from the judgment (see, CPLR 5501 [c]).

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

Ordered that the judgment is reversed, on the law, the motions are denied, the order dated May 6, 1999, is vacated, and the complaint is reinstated; and it is further,

Ordered that the appellant is awarded one bill of costs payable by 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 ). 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]).

In light of Henry v City of New York (94 NY2d 275), the complaint was not time-barred and the judgment must be reversed. Contrary to the defendants’ contention, there is no other basis for dismissal of the complaint. Mangano, P. J., Santucci, Krausman, Plorio and Schmidt, JJ., concur.