Pecker v. Horwitz

1 A.D.2d 338, 766 N.Y.S.2d 592

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2003
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Patterson, J.), dated July 15, 2002, which granted the motion of the defendants Kathy Panken Plesser and Murray Hill Radiology & Mammography, EC., for summary judgment dismissing the complaint insofar as asserted against them, and (2) a judgment of the same court entered September 18, 2002, upon the order, dismissing the complaint insofar as asserted against those defendants.

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 one bill of costs is awarded, to the respondents.

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 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

Contrary to the plaintiffs contention, the defendants Kathy Panken Plesser and Murray Hill Radiology &. Mammography, PC., demonstrated their prima facie entitlement to summary judgment by establishing that they did not depart from accepted medical practice (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, the plaintiff failed to raise a triable issue of fact (see Zawadzki v Knight, 76 NY2d 898 [1990]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Sheikh v Sinha, 272 AD2d 465 [2000]; Fhima v Maimonides Med. Ctr., 269 AD2d 559 [2000]; Kaplan v Hamilton Med. Assoc., 262 AD2d 609 [1999]). Santucci, J.P., S. Miller, Goldstein and Cozier, JJ., concur.