| Hazell v Dranitzke |
| 2007 NY Slip Op 09728 [46 AD3d 619] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Catherine Hazell, Appellant, v Richard Dranitzke et al.,Respondents, et al., Defendant. |
—[*1] Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Michael G. Kruzynski of counsel), forrespondent Richard Dranitzke. Bower Sanger & Lawrence, P.C., New York, N.Y. (Peter R. Bower of counsel), forrespondent St. Charles Hospital and Rehabilitation Center.
In a action to recover damages for personal injuries and wrongful death, the plaintiffCatherine Hazell, individually and as administratrix of the estate of Basil Hazell, appeals from(1) an order of the Supreme Court, Suffolk County (Pines, J.), dated September 27, 2006, whichgranted the separate motions of the defendants Richard Dranitzke and St. Charles Hospital andRehabilitation Center for summary judgment dismissing the complaint insofar as asserted againstthem, and (2) a judgment entered November 9, 2006, upon the order, which is in favor of thosedefendants and against her, dismissing the complaint insofar as asserted against them.
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.[*2]
The appeal from the intermediate order must bedismissed because the right of direct appeal therefrom terminated with the entry of judgment inthe action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appealfrom the order are brought up for review and have been considered on appeal from the judgment(see CPLR 5501 [a] [1]).
In opposition to the prima facie demonstrations by the defendants Dr. Richard Dranitzke andSt. Charles Hospital and Rehabilitation Center (hereinafter St. Charles) of their entitlement tosummary judgment, the plaintiff failed to raise a triable issue of fact (see Bowman v Chasky, 30 AD3d552, 552-553 [2006]; see also Zuckerman v City of New York, 49 NY2d 557, 563[1980]). Therefore, the Supreme Court properly granted summary judgment to Dranitzke on theplaintiff's cause of action alleging that he negligently performed a left carotid endarterectomy,hemashield patch, and angioplasty operation and negligently failed to secure the plaintiff'sdecedent during a CT scan, and also properly granted summary judgment to St. Charles on theplaintiff's cause of action alleging that the hospital personnel negligently failed to secure thedecedent during a CT scan (see Zuckerman v City of New York, 49 NY2d at 564).
The plaintiff's contention invoking res ipsa loquitur is not properly before this Court, as thiscontention was not raised in the Supreme Court or in the plaintiff's main brief (see Krzyanowski v Eveready Ins. Co.,28 AD3d 613 [2006]).
Motion by the defendant St. Charles Hospital and Rehabilitation Center on an appeal from ajudgment of the Supreme Court, Suffolk County, entered November 9, 2006, to strike point twoof the plaintiff's reply brief on the ground that it improperly invokes res ipsa loquitur, which wasnot raised in the Supreme Court or in the plaintiff's main brief. By decision and order on motiondated September 25, 2007, the motion was held in abeyance, and was referred to the Justiceshearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is[*3]
Ordered that the motion is denied as academic. Crane,J.P., Rivera, Angiolillo and Dickerson, JJ., concur.