MAIETTA v. Raymond Reich, etc., respondent. (2005)

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Kings County (Steinhardt, J.), dated August 2, 2004, which granted the motion of the defendant Raymond Reich to dismiss the complaint insofar as asserted against him as time-barred, and denied their cross motion to consolidate this action with an action entitled Maietta v. Reich, pending in the Supreme Court, Nassau County, under Index No. 1601/02, and (2) a judgment of the same court dated September 2, 2004, which, upon the order, dismissed the complaint insofar as asserted against the defendant Raymond Reich.

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 respondent.

 The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

Contrary to the plaintiffs' contentions on appeal, the Supreme Court properly dismissed the complaint insofar as asserted against the defendant Raymond Reich as time-barred (see Marchand v. Capone, 223 A.D.2d 686, 637 N.Y.S.2d 455;  CPLR 208).

 Whether an action was timely commenced as against Reich in Nassau County for the same relief cannot be determined from the instant record.   Further, because it may entail both factual and discretionary determinations, it is an issue best resolved by the Nassau County courts.   Thus, the plaintiffs' cross motion to consolidate this action with the Nassau County action was properly denied.

The plaintiffs' remaining contentions are without merit.