| Mikus v Rosell |
| 2009 NY Slip Op 03703 [62 AD3d 674] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Fern B. Mikus et al., Appellants, v Frank Rosell et al.,Respondents. |
—[*1] Kopff, Nardelli & Dopf LLP, New York, N.Y. (Martin B. Adams of counsel), forrespondents.
In an action to recover damages for medical malpractice and wrongful death, the plaintiffappeals, as limited by her brief, from (1) so much of an order of the Supreme Court, RichmondCounty (Maltese, J.), dated January 16, 2008, as granted that branch of the motion of thedefendants Frank Rosell and Soad Bekheit-Saad which was for summary judgment dismissingthe wrongful death cause of action insofar as asserted against the defendant Frank Rosell, and (2)so much of a judgment of the same court entered February 21, 2008, as, upon the order, is infavor of the defendant Frank Rosell and against her, dismissing the wrongful death cause ofaction insofar as asserted against him.
Ordered that the appeal from the order dated January 16, 2008 is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, the wrongfuldeath cause of action insofar as asserted against the defendant Frank Rosell is reinstated, thatbranch of the motion of the defendants Frank Rosell and Soad Bekheit-Saad which was forsummary judgment dismissing the complaint insofar as asserted against the defendant FrankRosell is denied, the order dated January 16, 2008 is modified accordingly, and so much of asubsequent order of the same court dated May 21, 2008, as, upon reargument, adhered to theoriginal determination in the order dated January 16, 2008, granting that branch of the motion isvacated; and it is further,[*2]
Ordered that one bill of costs is awarded to the plaintiffs.
The appeal from the intermediate order dated January 16, 2008, must be dismissed becausethe right of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order arebrought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
Contrary to the Supreme Court's conclusion, the plaintiffs' cause of action to recoverdamages for wrongful death insofar as asserted against the defendant Frank Rosell is nottime-barred. At the time of the decedent's death on October 30, 2004 the decedent still had aviable cause of action to recover damages for medical malpractice based on Rosell's allegedlynegligent treatment on January 15, 2003 (see CPLR 214-a). Since the wrongful deathcause of action against Rosell was interposed within two years of the decedent's death, it is nottime-barred (see EPTL 5-4.1; Scanzano v Horowitz, 49 AD3d 855, 856 [2008]; Norum v Landau, 22 AD3d 650,651-652 [2005]; Murphy v Jacoby, 250 AD2d 826 [1998]; Suarez v Phelps Mem.Hosp. Assn., 130 AD2d 571 [1987]; Marlowe v DuPont deNemours & Co., 112AD2d 769, 771 [1985]; cf. Phelps v Greco, 177 AD2d 559, 560 [1991]). Mastro, J.P.,Skelos, Santucci and Hall, JJ., concur. [See 19 Misc 3d 178.]