Callahan v. Guneratne

910 N.Y.S.2d 551

78 A.D.3d 753

Andrew CALLAHAN, etc., appellant,

v.Franklin GUNERATNE, etc., et al., respondents, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 9, 2010.

Dankner & Milstein, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellant.

Vouté, Lohrfink, Magro & Collins, LLP, White Plains, N.Y. (Laura K. Silverstein of counsel), for respondent Franklin Guneratne.

Tarshis Catania Liberth Mahon & Milligram, PLLC, Newburgh, N.Y. (Steven I. Milligram and Rebecca Baldwin Mantello of counsel), for respondent Arif M. Muslim.

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for medical malpractice, etc., the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Orange County (Owen, J.), entered September 3, 2009, as granted the separate motions of the defendant Franklin Guneratne and the defendant Arif M. Muslim for summary judgment dismissing the complaint insofar as asserted against each of them, (2) from a judgment of the same court entered October 7, 2009, which, upon so much of the order as granted the motion of the defendant Arif M. Muslim for summary judgment dismissing the complaint insofar as asserted against him, is in favor of that defendant and against him, and (3) from a judgment of the same court entered November 17, 2009, which, upon so much of the order as granted the motion of the defendant Franklin Guneratne for summary judgment dismissing the complaint insofar as asserted against him, is in favor of that defendant and against him.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgments are reversed, on the law, the motions of the defendants Franklin Guneratne and Arif M. Muslim for summary judgment dismissing the complaint insofar as asserted against each of them are denied, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissedbecause the right of direct appeal therefrom terminated with the entry of the judgments 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 the appeal from the order are brought up for review and have been considered on the appeals from the judgments ( see CPLR 5501[a][1] ).

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). " 'Failureto make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers' " ( Perre v. Vassar Bros. Hosp., 52 A.D.3d 670, 670, 861 N.Y.S.2d 693, quoting...