Opinion
Submitted March 23, 2000.
May 22, 2000.
In an action to recover damages for personal injuries arising from medical malpractice, the defendant Mather Memorial Hospital appeals from stated portions of an order of the Supreme Court, Suffolk County (Catterson, J.), entered July 2, 1999, which, inter alia, granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to the extent of directing it to pay an attorney's fee of $2,000 to the plaintiff's attorney.
Kral, Clerkin, Redmond, Ryan, Perry Girvan, Smithtown, N Y (Wayne E. Spaeth of counsel), for appellant.
Garguilo Orzechowski, LLP, St. James, N.Y. (Jerry Garguilo of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the appeal is dismissed, with costs.
In the order appealed from, the Supreme Court, inter alia, directed the appellant to pay an attorney's fee to the plaintiff's attorney for the cost of bringing a motion based upon the spoliation of evidence. Although a stipulation of discontinuance was subsequently executed discontinuing the action with prejudice, it expressly provided that the appellant was not released from liability, inter alia, for the attorney's fee imposed by the Supreme Court in the order appealed from. The appellant failed in the stipulation of discontinuance to reserve its right to appeal from that order, and is thus barred from pursuing this appeal (see, React Serv. v. Rindos, 243 A.D.2d 550).
SANTUCCI, J.P., FRIEDMANN, McGINITY and SMITH, JJ., concur.