Ewart v. Maimonides Medical Center

239 A.D.2d 543, 657 N.Y.S.2d 210, 1997 N.Y. App. Div. LEXIS 5672

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1997
• Status: Published

Opinion

In a medical malpractice action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Bollard, J.), dated May 23, 1996, which denied her motion to enter a default judgment against the defendant and granted the defendant’s cross motion to dismiss the complaint pursuant to CPLR 3215 (c), and (2) a judgment of the same court, entered July 2, 1996, which dismissed the complaint.

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 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]).

The plaintiff failed to seek entry of a default judgment within one year following the defendant’s default in answering the complaint. Because the plaintiff failed to make a showing of sufficient cause why the complaint should not be dismissed, the court providently exercised its discretion in dismissing the complaint (see, CPLR 3215 [c]; Nevling v Chrysler Corp., 206 AD2d 221; Hagel v City of New York, 201 AD2d 535). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.