| Koscinski v St. Joseph's Med. Ctr. |
| 2008 NY Slip Op 00235 [47 AD3d 685] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Ireneusz Koscinski, Appellant, v St. Joseph's MedicalCenter, Respondent, et al., Defendants. |
—[*1] Martin Clearwater & Bell LLP, New York, N.Y. (Ellen B. Fishman, Peter T. Crean, and JohnBarbera of counsel), for respondent.
In an action to recover damages for medical malpractice, the plaintiff appeals from an orderof the Supreme Court, Kings County (Ruditsky, J.), dated October 3, 2006, which granted themotion of the defendant St. Joseph's Medical Center for leave to renew, and upon renewal,granted that defendant's prior cross motion to dismiss the complaint insofar as asserted against itwhich had been denied in an order of the same court dated March 21, 2005.
Ordered that the order is affirmed, with costs.
This action to recover damages for medical malpractice was commenced in 2001. In 2004 theplaintiff failed to comply with an order directing him to file a note of issue by a date certain.Thereafter, the plaintiff moved to restore the case "to active status." That motion was opposed bythe defendant St. Joseph's Medical Center (hereinafter the Hospital) and by the defendantRichard Radna. Both the Hospital and Radna also separately cross-moved, on identical grounds,to dismiss the complaint as to each of them. The Supreme Court granted the plaintiff's "motion torestore and vacate dismissal" and denied the cross motions to dismiss. Only Radna appealed fromthat order. On appeal, this Court reversed, denied the plaintiff's motion to restore the case "toactive status," granted Radna's cross motion to dismiss the complaint insofar as asserted againsthim, and severed the action against the remaining defendants, including the Hospital (see Koscinski v St. Joseph's Med. Ctr.,24 AD3d 421 [2005]).[*2]
Based upon this Court's decision and order, the Hospitalmoved in the Supreme Court for leave to renew its cross motion to dismiss the complaint insofaras asserted against it. The Supreme Court granted renewal, and upon renewal, granted theHospital's prior cross motion to dismiss the complaint insofar as asserted against it. We affirm.
Contrary to the plaintiff's contention, the Hospital was not precluded from seeking renewal ofits cross motion to dismiss the complaint insofar as asserted against it because it did not appealfrom the prior order which denied that cross motion. Although, as a general rule, an appellatecourt will not grant any affirmative relief to a non-appealing party (see Hecht v City of NewYork, 60 NY2d 57, 60 [1983]; Damiani v Federated Dept. Stores, Inc., 23 AD3d 329 [2005]; Millard v Alliance Laundry Sys., LLC,28 AD3d 1145 [2006]), this principle does not bar a non-appealing defendant from seekingrenewal of a cross motion to dismiss the complaint insofar as asserted against it based upon anappellate court's decision to grant dismissal of the complaint as to a codefendant.
The plaintiff's remaining contention is without merit. Prudenti, P.J., Mastro, Santucci andLifson, JJ., concur.