Opinion
2013-07-10
Nilufar AHRORGULOVA, appellant, v. Melinda Sue MANN, etc., defendant third-party plaintiff-respondent. Faye Perl, etc., third-party defendant-respondent.
Victoria Wickman, New York, N.Y., for appellant. Wenick & Finger, P.C., New York, N.Y. (Frank J. Wenick of counsel), for defendant third-party plaintiff-respondent.
Victoria Wickman, New York, N.Y., for appellant. Wenick & Finger, P.C., New York, N.Y. (Frank J. Wenick of counsel), for defendant third-party plaintiff-respondent.
Edward Garfinkel (McGaw, Alventosa & Zajac, Jericho, N.Y. [Andrew Zajac and Joseph Horowitz], of counsel), for third-party defendant-respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.
In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Kings County (Rosenberg, J.), dated July 14, 2011, which granted the third-party defendant's motion for summary judgment dismissing the third-party complaint. Motion by the third-party defendant-respondent to dismiss the appeal on the ground that the appellant is not aggrieved by the order. By decision and order on motion of this Court dated February 27, 2012, the motion 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 motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is,
ORDERED that the motion is granted; and it is further,
ORDERED that the appeal is dismissed, with one bill of costs.
“A person is aggrieved within the meaning of CPLR 5511 ‘when he or she asks for relief but that relief is denied in whole or in part,’ or, when someone ‘asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part’ ” ( Matter of Michael O.F., 101 A.D.3d 1121, 1122, 955 N.Y.S.2d 895, quoting Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132;seeCPLR 5511). The order appealed from granted relief to the third-party defendant, Faye Perl, against the defendant third-party plaintiff, Melinda Sue Mann. Since the plaintiff is not aggrieved by the order appealed from, her appeal must be dismissed ( seeCPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d at 156–157, 904 N.Y.S.2d 132).