Opinion
2003-03748, 2003-03749.
Decided February 23, 2004.
In an action to recover damages for medical malpractice, etc., the defendants Chun Fu Wang and Rafaelita Samala, s/h/a "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.
O'Leary O'Leary, Jamaica, N.Y. (Joseph D. Furlong of counsel), for appellants.
Benedict P. Morelli Associates, P.C., New York, N.Y. (David S. Ratner and Steven C. November of counsel), for respondents.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, SANDRA L. TOWNES, STEPHEN G. CRANE and REINALDO E. RIVERA, JJ.
DECISION ORDER
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 N.Y.2d 632; cf. Blackwell v. Long Is. Coll. Hosp., 303 A.D.2d 615, 616; Garofalo v. Mercy Hosp., 271 A.D.2d 642).
RITTER, J.P., S. MILLER, TOWNES, CRANE and RIVERA, JJ., concur.