Rodriguez v. Kim

166 N.Y.S.3d 592, 205 A.D.3d 946, 2022 NY Slip Op 03264

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 2022
• Docket: Index No. 8411/14
• Status: Published

Opinion

Rodriguez v Kim (2022 NY Slip Op 03264)

Rodriguez v Kim

2022 NY Slip Op 03264

Decided on May 18, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 18, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
COLLEEN D. DUFFY
JOSEPH J. MALTESE
LARA J. GENOVESI, JJ.

2019-06524
(Index No. 8411/14)

[*1]Marysol Rodriguez, et al., appellants,

v

Helen H. Kim, etc., et al., defendants, Lourdes Esteban, etc., et al., respondents.

Krentsel & Guzman, LLP, New York, NY (Marcia K. Raicus of counsel), for appellants.

Garson & Jakub LLP, New York, NY (Maria S. Hristova of counsel), for respondents.

In an action to recover damages for medical malpractice, the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Gloria M. Dabiri, J.), dated May 6, 2019. The judgment, upon an order of the same court dated June 6, 2018, granting that branch of the motion of the defendants Lourdes Esteban and Luigi Parisi which was for summary judgment dismissing the complaint insofar as asserted against them, is in favor of those defendants and against the plaintiffs dismissing the complaint insofar as asserted against those defendants.

DECISION & ORDER

Motion by the respondents, inter alia, in effect, to dismiss the appeal on the ground that review of the issues to be raised on the appeal is precluded by the dismissal of a prior appeal from the order dated June 6, 2018, for failure to timely perfect. By decision and order on motion of this Court dated May 20, 2020, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the branch of the motion which is, in effect, to dismiss the appeal on the ground that review of the issues to be raised on the appeal is precluded by the dismissal of a prior appeal from the order dated June 6, 2018, for failure to timely perfect, is granted; and it is further,

ORDERED that the appeal is dismissed; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

This action to recover damages for medical malpractice is based upon the alleged failure to diagnose and treat lymphoma in the plaintiff Marysol Rodriguez (hereinafter the plaintiff). The defendant Lourdes Esteban was the plaintiff's neurologist, and the defendant Luigi Parisi was [*2]the plaintiff's primary care physician. Esteban and Parisi (hereinafter together the defendants) moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. By order dated June 6, 2018, the Supreme Court granted that branch of the motion. The plaintiffs filed a notice of appeal from the order. However, they failed to timely perfect their appeal, and the appeal was deemed dismissed (see 22 NYCRR 1250.10[a]). Judgment was entered on May 6, 2019. The plaintiffs appeal from the judgment, arguing that the court should have denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them.

As a general rule, a dismissal for want of prosecution acts as a bar to a subsequent appeal as to all issues that were presented on the earlier appeal (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350), although this Court has the inherent jurisdiction to consider such issues (see Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d 785). Here, the plaintiffs have not demonstrated any basis for the exercise of such discretion (see M.H. v Tucci, 166 AD3d 750). Accordingly, the appeal from the judgment is dismissed.

DILLON, J.P., DUFFY, MALTESE and GENOVESI, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court