William Hou v Chun Fu Wang

Hou v Chun Fu Wang 2004 NY Slip Op 01155 [3 AD3d 835] February 23, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 21, 2004

William Hou et al., Respondents,
v
Chun Fu Wang et al., Appellants, et al., Defendants.

—In an action to recover damages for medical malpractice, etc., the defendants Chun Fu Wang and Rafaelita Samala, sued herein as "Jane" Samala, appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Queens County (Glover, J.), dated January 7, 2003, as, in effect, held in abeyance that branch of their motion which was to dismiss the action for failure to prosecute and set the matter down for a compliance conference, and (2) so much of an order of the same court dated April 1, 2003, as, in effect, denied that branch of their motion which was to dismiss the action for failure to prosecute.

Ordered that the appeal from the order dated January 7, 2003, is dismissed, as no appeal lies as of right from the portion of the order appealed from (see CPLR 5701 [a]), and we decline to grant leave to appeal as the appeal has been rendered academic; and it is further,

Ordered that the order dated April 1, 2003, is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the respondent.

Contrary to the appellants' contentions, the Supreme Court properly denied their motion to dismiss the action for failure to prosecute (see CPLR 3216 [e]; Di Simone v Good Samaritan Hosp., 100 NY2d 632 [2003]; cf. Blackwell v Long Is. Coll. Hosp., 303 AD2d 615, 616 [2003]; Garofalo v Mercy Hosp., 271 AD2d 642 [2000]). Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.