Opinion
May 20, 1991
Appeal from the Supreme Court, Nassau County (Roberto, J.).
Ordered that the appeal from the order is dismissed, without costs and disbursements; and it is further,
Ordered that the judgment is modified, on the law, by adding a provision thereto granting the plaintiff an opportunity to request a hearing pursuant to Central General Hospital, Inc., by-laws §§ 9.1:3.2 and 9.2:2; as so modified, the judgment is affirmed, without costs or disbursements; and it is further,
Ordered that the plaintiff's time to request a hearing pursuant to Central General Hospital, Inc., by-laws §§ 9.1:3.2 and 9.2:2 is extended until 15 days after service upon him of a copy of this decision and order, with notice of entry.
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). 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]).
We find that the Supreme Court erred in concluding that a May 23, 1989, letter from Robert Bornstein, the Executive Director of the Hospital, provided the plaintiff with adequate notice that pursuant to the by-laws of Central General Hospital, Inc., he was entitled to a hearing or appellate review of his summary suspension from the hospital's Emergency Department Call Roster, and that he had to request an administrative hearing within 15 days of receipt of the letter (see generally, 67 N.Y. Jur 2d, Injunctions, § 31, at 393; After Six v 201 E. 66th St. Assocs., 87 A.D.2d 153, 155). Moreover, the May 23, 1989, letter did not meet the requirement of section 9.2:1 of the hospital's by-laws that the Chief Executive Officer must give prompt written notice of an adverse recommendation or decision to any affected practitioner who is entitled to a hearing or appellate review by certified mail, return receipt requested, and to advise him of his rights. In light of the late notification of suspension, we find that the plaintiff should not be precluded from requesting a hearing.
Since the plaintiff has administrative remedies available to him, the Supreme Court properly denied him a preliminary injunction on the basis of his failure to exhaust his administrative remedies (see, Guibor v Manhattan Eye, Ear Throat Hosp., 46 N.Y.2d 736; Matter of Capote v Our Lady of Mercy Med. Center, 168 A.D.2d 238; Matter of Libby, 163 A.D.2d 388). Similarly, immediate reinstatement is not the appropriate remedy at this time (cf., Matter of Murphy v St. Agnes Hosp., 107 A.D.2d 685). Kunzeman, J.P., Balletta, Miller and O'Brien, JJ., concur.