| Williams v New York City Health & Hosps. Corp. |
| 2011 NY Slip Op 04662 [84 AD3d 1358] |
| May 31, 2011 |
| Appellate Division, Second Department |
| James Williams, Appellant, v New York City Health andHospitals Corporation, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and SusanB. Eisner of counsel), for respondent.
In an action, inter alia, to recover damages for dental malpractice and lack of informedconsent, the plaintiff appeals (1), as limited by his brief, from so much of an order of theSupreme Court, Kings County (Jackson, J.), dated March 2, 2010, as granted the defendant'smotion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred, and (2) from ajudgment of the same court dated April 7, 2010, which, upon the order, is in favor of thedefendant and against him dismissing the complaint.
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 defendant.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The defendant met its threshold burden of demonstrating, prima facie, that the complaint wastime-barred (see McKinney's Uncons Laws of NY § 7401 [2] [New York CityHealth and Hospitals Corporation Act § 20 (2), as added by L 1969, ch 1016, § 1, asamended]; Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630,634 [1991]; McDermott v Torre, 56 NY2d 399, 405 [1982]; Simcuski v Saeli, 44NY2d 442, 452-453 [1978]; Giannetto v Knee, 82 AD3d 1043 [2011]; Cherise vBraff, 50 AD3d 724, 726 [2008]; cf. General Municipal Law § 50-i [1]). Inopposition, the plaintiff failed to raise a question of fact as to whether the statute of limitationswas tolled or was otherwise inapplicable, or whether he actually commenced the action withinthe applicable limitations period (see Rakusin v Miano, 84 AD3d 1051 [2011]; cf.Krichmar v Scher, 82 AD3d 1164, 1165 [2011]).[*2]
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR3211 (a) (5) to dismiss the complaint as time-barred. Rivera, J.P., Angiolillo, Eng, Chambers andSgroi, JJ., concur.