Fiorenti v. Central Emergency Physicians

19 A.D.3d 539, 796 N.Y.S.2d 530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 20, 2005
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract and violation of the Labor Law, the defendants, Central Emergency Physicians, PLLC, and Theodore F. Packy, M.D., ap- peal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Austin, J.), entered November 5, 2003, as denied their motion, among other things, for leave to renew a prior motion to dismiss the complaint and, upon the resubmission pursuant to CPLR 3222 (b) of the plaintiffs’ cause of action to recover damages for breach of contract, found in favor of the plaintiffs and against the defendant Central Emer- gency Physicians, PLLC, on the issue of liability on the causes of action alleging breach of contract and violation of the Labor Law.

Ordered that the appeal by the defendant Theodore F. Packy is dismissed, as he is not aggrieved by the portion of the order appealed from; and it is further,

Ordered that the order is affirmed insofar as appealed from by the defendant Central Emergency Physicians, PLLC, with costs.

The appellant Central Emergency Physicians, PLLC (herein- after the appellant), waived appellate review of the issue of its liability under the Labor Law, since it could have raised the is- sue on a prior appeal (see Fiorenti v Central Emergency Physicians, 305 AD2d 453 [2003]), but elected not to (see EIFS, Inc. v v Morie Co., 298 AD2d 551 [2002]; Duffy v Holt-Harris, 260 AD2d 595 [1999]; Matter of Gerzof v Coons, 177 AD2d 487 [1991]).

The appellant’s remaining contentions are without merit. S. Miller, J.P., Luciano, Crane and Skelos, JJ., concur.