

Mello v Long Is. Vitreo-Retinal Consultant, P.C. (2019 NY Slip Op 03586)





Mello v Long Is. Vitreo-Retinal Consultant, P.C.


2019 NY Slip Op 03586


Decided on May 8, 2019


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 8, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
COLLEEN D. DUFFY
FRANCESCA E. CONNOLLY
LINDA CHRISTOPHER, JJ.


2017-12682
 (Index No. 8280/13)

[*1]Bruce Mello, respondent, 
vLong Island Vitreo-Retinal Consultant, P.C., et al., defendants, Ophthalmic Consultants of Long Island, et al., appellants.


Kelly Rode & Kelly, LLP, Mineola, NY (Eric P. Tosca and Shawn Kelly of counsel), for appellants.
Law Offices of Daniel A. Thomas, P.C., New York, NY, for respondent.

DECISION & ORDER
In an action to recover damages for medical malpractice, the defendants Ophthalmic Consultants of Long Island and Robert Broderick appeal from an order of the Supreme Court, Nassau County (Jack L. Libert, J.), dated November 2, 2017. The order, insofar as appealed from, denied that branch of the motion of those defendants which was to stay all proceedings pending an immediate trial regarding the statute of limitations.
ORDERED that the appeal is dismissed as academic, without costs or disbursements.
In light of our disposition in the related appeal (see Mello v Long Island Vitreo-Retinal Consultant, P.C., _____ AD3d _____ [Appellate Division Docket No. 2017-05862; decided herewith]), the issue raised on this appeal regarding whether the Supreme Court should have granted an immediate trial on the question of whether the continuous treatment doctrine tolled the statute of limitations has been rendered academic (see Nick v Schneider, 150 AD3d 1250, 1250, 1254).
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.

2017-12682	DECISION & ORDER ON MOTION
Bruce Mello, respondent, v Long Island
Vitreo-Retinal Consultant, P.C., et al., defendants,
Ophthalmic Consultants of Long Island, et al.,
appellants.
(Index No. 8280/13)

Cross motion by the respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Nassau County, dated November 2, 2017, on the ground that the order is not appealable. By decision and order on motion of this Court dated June 7, 2018, that branch of the cross motion which is to dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the cross motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the branch of the cross motion which is to dismiss the appeal is denied as academic in light of our determination on the appeal.
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


